The Halachos of Book, Wine, and Restaurant Reviews

The entire story of Yosef being sold to Egypt was a result of a “critical review…”

Photo by EmZed from FreeImages

Someone once sent me the following email with the following series of shaylos:

Dear Rabbi Kaganoff,

1. Is a person allowed to write balanced reviews of books? This question concerns hashkafah-type works, halachic works, self-help books, as well as novels.

Obviously, there are many halachic ramifications, including lashon hora, etc. I would specifically like to know if one is allowed to review unfavorably a work that the reviewer finds seriously lacking.

2. May one write reviews of other products, such as wine or restaurants?

3. If a person asks my opinion of a book, a wine, or a restaurant, may I answer truthfully, even if my personal negative opinion may result in the person choosing another product?

With much thanks in advance, Aaron Bernstein

Before I answer Aaron’s question, I must first present the halachos of lashon hora that apply here.

Saying something true that may damage someone’s professional or business reputation, or causes him financial harm, constitutes lashon hora, even when nothing negative is intended.[1] Thus, random schmoozing about the quality of different workmen’s skills, the halachic prowess of different talmidei chachomim, or the quality of education provided by a certain school constitutes lashon hora.

However, when I need certain information, I may ask people who might know. For example, if I need to have some home repairs performed, I may “ask around” what experience other people have had with various professionals. I should tell them why I need to know, and they should tell me only what is relevant to my needs.

Examples:

1. Gilah hired a home-improvement contractor who was skilled and efficient, but inexperienced in certain plumbing work. Ahuva asks Gilah whether the contractor was good. Gilah should reply that he was skilled and efficient, but does Ahuva intend to include any plumbing? If the reply is negative, Gilah should say nothing, since Ahuva understands that if she changes her mind and decides to include plumbing, she should discuss it with Gilah first. If the reply is that there is plumbing to be done, Gilah should tell her that the contractor’s work was excellent and efficient, but that he seemed somewhat inexperienced in plumbing. Gilah should suggest that, perhaps, by now he has the experience, and Ahuva also has the option to ask him to subcontract the plumbing.

2. Yaakov moves to a new neighborhood and asks Michael who the local poskim are. Michael can mention one, some, or all of the local available poskim, but should not mention any disqualifying factors about them, such as, Rabbi X is curt, Rabbi Y is very machmir, or Rabbi Z’s shiurim are unclear. Michael may ask Yaakov what qualities he is looking for in a rav and then make recommendations, based on Yaakov’s answer.

What if I know that the mechanic is dishonest?

Yitzchok and Esther just moved to my neighborhood and mention to me that they are planning to bring their car, which is making an unusual noise, to Gonif’s Service Station. I have found the proprietor of Gonif’s to be very dishonest. May I say something to Yitzchok and Esther?

The halacha is that not only may I say something to them, but I am obligated to do so.[2] This is because I am responsible to make sure that Yitzchok and Esther are not hurt financially by the crooked repair shop. This is included in the mitzvah of lo saamod al dam rei’echa, do not stand by idly while your friend becomes injured.[3]

However, exactly how I impart this information to Yitzchok and Esther depends on the circumstances.

Why is this so?

In any situation where I must protect someone from harm, whether it is a potentially harmful shidduch, damaging chinuch or a bad business deal, there are five rules that govern what I may say:

1. Is it bad?

Be certain that what may transpire (if I do not intercede) is, indeed, bad. Often, one assumes that something is worse than it really is. Later in this article, I will describe a case that appears bad, while halachically it is not considered so. In the case at hand, I am responsible to see that Yitzchok and Esther are not deceived by the repair shop. By warning them, I have fulfilled the first rule.

2. No exaggerating

Do not exaggerate, describing the situation as worse than it is. In this case, even if I need to describe Gonif’s dishonesty (which I can probably avoid, as we will explain later), I should describe only what I personally know, and I must be careful not to embellish or include hearsay.

3. Appropriate motivation

One’s motivation must be to protect the innocent person from harm, not to bring retribution on the person responsible for causing the harm. In our case, this means that my goal is to protect Yitzchok and Esther from harm, not to “get back” at Gonif’s. The reason for this condition is that one violates the prohibition of saying lashon hora if one has evil intent, even in a case when one may otherwise transmit the information.[4]

4. No other choice

Can I accomplish what I need to without saying lashon hora? The answer to this question depends on the situation. What do I need to accomplish? In the case of the crooked repair shop, my goal is that Yitzchok and Esther not be victimized by the shop. I can accomplish this in several different ways, some of which do not require tarnishing the repair shop’s reputation. For example, if Yitzchok and Esther will heed my advice to take their car to “Careful and Honest Repairs” instead, I have no need to tell them that Gonif’s is a dishonest shop. In this instance, I have accomplished my purpose, without mentioning the dishonest acts I have witnessed.

5. Too damaging

Will the result of my sharing the negative information be more harmful to the perpetrator than what he should suffer according to halacha? For example, I know that Reuven’s professional work is sometimes substandard, and I discover that Shimon, who is known to back out on deals he has committed to, contracted Reuven to do work. Although under other circumstances I would not only be permitted, but even required, to notify someone of Reuven’s lack of professional skill, in this situation, I may not notify Shimon, because he may back out on Reuven in a way that contravenes halacha.

When is something not really bad?

In condition #1 above, I mentioned that there are situations that someone considers bad, but which are not considered bad, according to halacha. The background behind this shaylah will impact directly on our original shaylah about reviewing books, wines, and restaurants.

What is an example of this situation?

Chani sees Miriam, who is new in the neighborhood, about to enter a grocery store that Chani knows is expensive. May Chani tell Miriam that groceries in this store might cost more than at the competition? The Chafetz Chayim rules that one may not reveal this information.[5]

Why is it not permitted to save Miriam from overpaying?

The Chafetz Chayim rules that overpaying slightly for an item is not considered a “bad thing,” provided the storekeeper is within the halachic range of what he may charge. (A full explanation of how much the storekeeper may charge is beyond the focus of this article.)

Why is being overcharged not considered being harmed?

Since the storekeeper who charges higher prices is not doing anything halachically wrong, one may not hurt his livelihood by encouraging someone to purchase elsewhere. And if one does, this is lashon hora, which includes hurting someone’s livelihood.

Thus, there is a major difference between a dishonest repair shop and one that is more expensive. It is a mitzvah to steer someone away from a dishonest store, but it is forbidden to steer him away from a Jewish store that charges more, when the store is halachically permitted to do so.

What happens if someone moves to town and asks me where he can find kosher groceries?

You should tell him which local groceries sell kosher products that have the hechsherim he wants. You do not need to supply a complete list of the stores in the neighborhood, but it is permissible to mention only the stores that are less expensive. However, you may not tell him which stores are more expensive.

If someone knows that a third party plans to purchase an item from a store that tends to be expensive, do not say anything. Even though the purchaser could save money by buying elsewhere, the storekeeper is losing from your actions. One should not get involved in saving one person’s money at someone else’s expense.[6] However, if the proprietor of the store is not an observant Jew or not Jewish, you may tell the purchaser that there is a less expensive place to make his purchase.

On the other hand, if the storekeeper is doing something that is halachically prohibited, such as selling defective or misrepresented products, you should warn a person intending to make a purchase there.

Book reviews

With this background, we can now discuss Aaron Bernstein’s first shaylah: “Is a person allowed to write balanced reviews of books?”

What does the review accomplish?

This depends on the type of book being reviewed. Let us begin with one category: Jewish novels.

Why do secular sources review books?

So that people can decide whether they will enjoy the book, and whether they should spend the money to purchase it.

May I do this? What “harm” am I protecting someone from by telling him to avoid purchasing this book? On the other hand, by warning people away from the book, I am hurting the livelihood of those who have invested time and money, intending that this book will provide them parnasah.

This is parallel to the case where one Jewish storeowner, in his desire to make a living, charges a bit more than his competitors. The halacha there is that I may not tell someone to avoid his store, since I am harming the storekeeper. Similarly, I may not tell people to save money by avoiding the purchase of a book. One may, however, publish a review that describes the positive aspects of a book.

Of course, this means that the most standard book reviews and other reviews common in secular circles contravene halachic guidelines. One may include a book review column only if it merely informs people of new publications, but does not provide negative critical review.

However, if a work contains flaws in hashkafah, one is required to refute the author’s mistakes.

Similarly, if a halacha work is flawed, one should write a review to clarify that the work contains errors.

Example:

Many years ago, I was asked by a well-known Jewish publication to review a particular halachic work. When I read the work, I felt it sorely lacking in certain areas — particularly hashkafah, and that it could easily be used as a resource for someone who would then behave in a questionable or non-halachic fashion. I pointed out these concerns of mine in the review, because, in this situation, it was very important to avoid serious halachic mishaps.

If the work reflects an approach to halacha different from one’s own, then it depends: if the halacha quoted is reliable, one may draw the reader’s attention to the fact that it reflects a different halachic approach.

Now we can look at the second question:

“2. May one write reviews of other products, such as wine or restaurants?”

We already know the answer to this question. If the purpose of the review is to discourage people from buying a product or eating in a restaurant, one may not write the review. But one may publish a review that contains the positive aspects of the product.

What if someone asks me my opinion of a certain wine or restaurant?

If you have a poor opinion of the wine, restaurant or book, you should inquire, “What are you looking for?” Then, when the questioner clarifies what he wants, direct him to the product that most satisfies his needs and interests. If the wine or restaurant in question may not be what he wants, explain to him what aspects would meet his needs, and what might not. This is permitted, because they have come to you to ask for information about the item. However, one may not simply put this information in the media for everyone, including readers who have no need of, or interest in, the information.

For example, you do not have a positive opinion of a restaurant. Why? You think the service is poor. Would that be a factor to this person? If you are not certain, but you think there are other redeeming reasons why this person may want to eat there anyway, say it in a way that does not reflect too negatively upon the restaurant, such as, “Once, when I was there, the service was a bit slow. But I don’t dine there very often.”

One of the rabbonim to whom I sent this article for his opinion wrote me the following: “I don’t agree with what you wrote about restaurants. If one has a criticism that doesn’t necessarily make it an undesirable place for the one asking, I think that it is better to just say that ‘I don’t go there too often.’ The person won’t suffer by trying, and he will decide if he is happy with it.”

Could there be a frum kosher wine review?

Possibly, but only if its readership was limited to people who are shopping for wines and looking for advice.

Consumer Reports

According to halacha, may one publish a magazine like Consumer Reports?

Although the editors of this magazine have not sought my opinion, I think that they may publish the results of their research, if it is read only by people interested in purchasing these items and not by a general audience.

In conclusion, we see that the halachic approach to this entire issue is very different from that of contemporary society. We must remember that we examine our behavior through the prism of halacha and not from that of society.


[1] Rambam, Hilchos Dei’os 7:5

[2] Chofetz Chayim, Hilchos Rechilus 9:1

[3] See Be’er Mayim Chayim ad loc.

[4] See Be’er Mayim Chayim, Hilchos Rechilus 9:3

[5] Be’er Mayim Chayim, Hilchos Rechilus, 9:27

[6] See Be’er Mayim Chayim, Hilchos Rechilus 9:27 and commentaries

Using Hashem’s Name

The posuk in parshas Vayeishev (Bereishis 39:3) says that Yosef’s master, Potifar, recognized that Hashem was with Yosef. Rashi, quoting the Bereishis Rabbah, explains that this means that Yosef frequently referred to Hashem, thus introducing our topic for this week.

Question #1: Nasty Neighbor

Mrs. Goodhearted asks: “I have a disturbed neighbor who often spews out abusive invective. I am concerned that her cursing may bring evil things upon me. What should I do?”

Question #2: A Friend in Vain

Mr. Closefriend inquires: “A close friend of mine often makes comments like ‘for G-d’s sake,’ which I know are things that we should avoid saying. I wanted my friend to be one of the witnesses at my wedding, but an acquaintance mentioned that my friend may not be a kosher witness because he uses G-d’s name in vain. Is this really true?”

Introduction

Although both words “swear” and “curse” are often used to mean “speaking vulgar language,” for this entire article, I will not be using these words in this sense, but “swear” in the sense of “taking an oath,” and “curse” to mean “expressing desire that misfortune befall someone.”

Ten prohibitions

The Rambam counts a total of thirteen different mitzvos, ten mitzvos Lo Sa’aseh and three mitzvos Aseh, which are included within the context of our discussion. The ten Lo Sa’aseh prohibitions are:

  1. Not to break an oath or commitment that one has made. The Torah’s commandment concerning this law is located at the beginning of parshas Matos. It is counted and discussed in the Rambam’s Sefer Hamitzvos as Lo Sa’aseh #157 and in the Sefer Hachinuch as Mitzvah #407.
  2. Not to swear falsely (Sefer Hamitzvos, Lo Sa’aseh #61; Sefer Hachinuch, Mitzvah #227). This is derived from the words, lo sishav’u bishmi lashaker, “you shall not swear falsely in My Name,” which appear in parshas Kedoshim.
  3. Not to deny, with an oath, that one owes money. This mitzvah is also located in parshas Kedoshim and is derived from the words lo seshakru ish ba’amiso, “do not lie to your fellowman,” which Chazal interpret as a prohibition against swearing a false oath denying that one owes money (Bava Kama 105b; Sefer Hamitzvos, Lo Sa’aseh #249; Sefer Hachinuch, Mitzvah #226).
  4. Not to swear an oath that has no purpose (Sefer Hamitzvos, Lo Sa’aseh #62; Sefer Hachinuch, Mitzvah #30). This mitzvah is derived from the words of the Aseres Hadibros: You shall not take the Name of Hashem, your G-d, in vain.
  5. Not to cause someone to swear in the name of an idol (Sefer Hamitzvos, Lo Sa’aseh #14; Sefer Hachinuch, Mitzvah #86). This mitzvah is derived from the words, vesheim elohim acheirim… lo yishama al picha, “You should not cause the names of other gods to be used in an oath” in parshas Mishpatim (23:13; see Sanhedrin 63b).
  6. Not to curse Hashem (Sefer Hamitzvos, Lo Sa’aseh #60; Sefer Hachinuch, Mitzvah #70).
  7. Not to curse one’s parents (Sefer Hamitzvos, Lo Sa’aseh #318).
  8. Not to curse the king of the Jewish people or the head of the Sanhedrin, who is called the Nasi (Rambam, Hilchos Sanhedrin 26:1; Sefer Hamitzvos 316; Sefer Hachinuch, Mitzvah #71). This mitzvah is derived from the words, venasi be’amecha lo sa’or in parshas Mishpatim.
  9. Not to curse a dayan, a judge presiding over a beis din proceeding (Sefer Hamitzvos, Lo Sa’aseh #315; Sefer Hachinuch, Mitzvah #69; Rambam, Hilchos Sanhedrin 26:1). This mitzvah is derived from the words, Elohim lo sekaleil in parshas Mishpatim.
  10. Not to curse any Jew (Rambam, Hilchos Sanhedrin 26:1; Sefer Hamitzvos 317; Sefer Hachinuch, Mitzvah #231). This mitzvah is also derived from a verse in parshas Kedoshim, since it is included under the Torah prohibition do not curse someone deaf. As the Sefer Hachinuch explains the mitzvah, “do not curse any Jewish man or woman, even one who cannot hear the curse.”

Four in one

We should note that the above-mentioned mitzvos are not mutually exclusive, and one could violate several of them at the same time. For example, the son of the Nasi of the Sanhedrin who curses his father violates four different Lo Sa’aseh prohibitions: for cursing (1) a Jew, (2) his father, (3) a dayan, (4) the head of the Sanhedrin (Sefer Hachinuch, Mitzvah #231).

As we will see shortly, violating most of these prohibitions is punishable by 39 malkus, lashes (Temurah 3b). This is highly surprising, since usually violating a Torah mitzvah through speech does not lead to this sentence (Temurah 3a). However, these laws are exceptions to the usual rule, which demonstrates the severity of these prohibitions.

Three positive mitzvos

In addition to the ten Lo Sa’aseh mitzvos that this topic covers, there are also three positive mitzvos involved:

1. A mitzvah to fulfill something that one has accepted to do, located at the beginning of parshas Matos (Sefer Hamitzvos, Mitzvas Aseh #94; Sefer Hachinuch, Mitzvah # 406).

2. Fearing Hashem, which includes treating His Name with respect (see Temurah 4a).

3. The Rambam counts a positive mitzvah of taking an oath (Sefer Hamitzvos #7).

What does a curse accomplish?

At this point, I would like to explain a very important and often misunderstood concept. When someone curses an innocent person, the curse causes no harm. To quote Rav Moshe Feinstein, “when someone curses his fellowman, the prohibition is not because it causes harm to the other person. First of all, Heaven will ignore a curse that was performed in violation of the Torah. Second of all, a curse without basis does not bring harm.” Rav Moshe refers to the verse in Mishlei (26:2): an unjustified curse affects only the one who uttered it. a curse of this nature causes no harm.”

Furthermore, even the curses and evil intended by sorcerers (kishuf) do not affect Jews, since we are directly connected to Hashem, and therefore not affected by kishuf (Ramban, Bamidbar 24:23).

Rav Moshe concludes that although a curse of this nature does no harm to its intended target, the one who cursed a fellow Jew is punished because he embarrassed someone, and because he acted with disdain for Hashem’s Holy Name.

Based on this, Rav Moshe explains that there is a difference in halacha between cursing someone else and cursing oneself. When the Gemara (Shavuos 35a) states that cursing oneself is prohibited min HaTorah, Rav Moshe explains that, in this instance, the sinful act of cursing will bring upon himself punishment and harm (Shu”t Igros Moshe, Orach Chayim 3:78).

Based on Rav Moshe’s analysis of the mitzvah, we can now understand several other halachos of cursing. Cursing a child old enough to understand what was said is liable to the same level of punishment as cursing an adult. This is because it is prohibited to hurt a child’s feelings, just as it is forbidden to insult an adult. However, cursing a dead person is exemptfrom the punishment of malkus (Toras Kohanim on Parshas Kedoshim; Rambam, Hilchos Sanhedrin 26:1-2). This is because the dead feel no pain when someone curses them.

In one situation, cursing a dead person is indeed punished — cursing one’s parents after their demise is a fully culpable crime (Sanhedrin 85b, quoted by Kesef Mishneh, Hilchos Sanhedrin 26:2).

Cursing without using Hashem’s Name

Cursing a person without using G-d’s Name does not incur the punishment of malkus. However, the beis din has the halachic right and responsibility to punish the offender in a way that they feel is appropriate (Rambam, Hilchos Sanhedrin 26:5).

Having seen Rav Moshe’s explanation of the mitzvah, we can now explain why someone who curses without using Hashem’s name is not liable. The most severe violation, which incurs the punishment of malkus, is violated only if one committed both aspects of the sin – he demonstrated total disregard both for G-d and for man, by desecrating G-d’s Name and by offending someone. However, one who cursed without desecrating Hashem’s Name is spared from receiving corporeal chastisement, because his infringement was not of the highest level.  This is similar to cursing a dead person, as explained above.  Although Hashem’s Name has been desecrated, no living person is offended; hence, there is no malkus.

At this point, we can address our first question above. Mrs. Goodhearted asks: “I have a disturbed neighbor who often spews out abusive invective. I am concerned that her cursing may bring evil things upon me. What should I do?”

I would advise her to avoid her neighbor when she can, but for a different reason. Mrs. Goodhearted is concerned that she will be damaged by the neighbor’s curses – but according to Rav Moshe, there is no cause for concern. However, if her neighbor is sane enough to be responsible for her actions, the neighbor will be punished for cursing and for hurting people’s feelings. Mrs. Goodhearted should try to avoid giving her neighbor an opportunity to sin.

Cursing in English

Does cursing using G-d’s Name in a language other than Hebrew violate this prohibition? The Rambam rules that cursing someone using a vernacular Name of G-d is also prohibited min haTorah and is chayov malkus (Hilchos Sanhedrin 26:3; see also Shulchan Aruch, Choshen Mishpat 27:1).

What type of oath?

Having discussed the prohibitions against cursing one’s fellow Jew, let us now discuss the prohibitions against swearing in vain. What type of oath did the Torah prohibit taking?

In general, the Torah prohibits taking any type of oath, even when the oath is true, because it is an oath that has no purpose (Temurah 3b). For example, someone who swears truthfully that he did not eat anything today violates the Lo Sa’aseh, You shall not take Hashem’s Name in vain, since this oath accomplishes nothing.

Someone who swears an oath that is false, such as one who falsely swears that he did not eat breakfast that day, violates both the proscription for swearing a false oath and also for swearing a vain oath, since it serves no purpose.

Two exceptions

There are two instances when the Torah permits someone to swear a truthful oath (Temurah 3b). This is derived from the fact that the Torah says in two different places (Devarim 6:13; 10:20), uvishmo tishavei’a. We will see shortly that the halachic authorities dispute whether the words uvishmo tishavei’a should be translated as “in His Name you shall swear” or as “in His Name you may swear.”

Encouraging mitzvah observance

What are the two exceptional instances in which the Torah permits swearing?

(1) The first is when someone swears an oath as an incentive to support his efforts at growth and self-improvement. One may take an oath to encourage himself to perform a mitzvah that he might otherwise not perform (Temurah 3b). For example, one may swear to donate to tzedakah or to say a chapter of Tehillim every day.

Bear in mind that in general, although permitted, it is not a good idea to create oaths or vows upon oneself (see Nedarim 22a). Someone who takes an oath or a vow is now bound to observe it, and failure to do so is a grievous sin. Therefore, although reciting such an oath (that has a purpose) does not violate the Torah’s prohibition against taking Hashem’s Name in vain, it is usually recommended not to do so.

A better approach is to accept the new practice bli neder, which means that one is hoping and planning on it, but without the obligation and inherent problem of making it an obligation on the level of a shavua or a neder, a vow.

When required in litigation

(2) The second situation in which the Torah permits swearing an oath is within the framework of halachic litigation. There are instances in which the psak halacha, the final ruling of a beis din, requires a litigant to take an oath in order to avoid paying or to receive payment. When the beis din rules that one is required to take an oath, the Gemara (Temurah 3b) concludes that the person swearing does not violate the Torah’s prohibition against swearing unnecessarily.

Permitted or a mitzvah?

It is important to note that in this last situation, the authorities dispute whether the halacha is that one may take an oath, but there is no mitzvah to do so, and we would discourage the oath, or whether, in this situation, it is a mitzvah to swear an oath. The Rambam (Hilchos Shavuos 11:1 and Sefer Hamitzvos, Positive Mitzvah #7) contends that someone who swears because of a din Torah fulfills a positive mitzvah of the Torah, uvishmo tishavei’a, “in His Name you shall swear.” Others contend that this verse means simply “in His Name you may swear,” but that there is never a mitzvah of taking an oath (Ramban, Sefer Hamitzvos, Positive Mitzvah #7). Still others contend that even though the verse says, “in His Name you may swear,” this does not mean it is permitted to swear, but that one who swears is not punished for taking an oath (Shu”t Chasam Sofer, Choshen Mishpat #90). However, this last authority contends that one should avoid taking an oath even under these circumstances, and thereby explains why the custom is to pay large fees or fines rather than swear an oath that is fully truthful.

Testimony without oaths

It is worthwhile to note that testimony in halacha does not require one to swear an oath. This can be juxtaposed to the secular legal system, in which one must take an oath or pledge; otherwise, one’s testimony cannot be considered perjury. This is not true in halacha. A Jew’s word is sacrosanct, and any time he testifies or makes a claim in court, whether as a litigant, a witness or an attorney, he is halachically bound to tell only the truth. It is therefore a serious infraction of the Torah for someone to file a legal brief that includes false statements. In addition, filing these statements may involve many other violations, including loshon hora, rechilus, motzi shem ra, machlokes and arka’os.

Oath without G-d

Does swearing an oath without mentioning Hashem’s Name qualify as an oath? This question is discussed extensively by the rishonim, who conclude that someone who commits himself to doing (or refraining from doing) something, using terminology that implies an oath, is now bound to observe the pledge, whether or not he mentioned Hashem’s Name (Rambam, Hilchos Shavuos 2:4; Rashba, Shavuos 36a; Shulchan Aruch, Yoreh Deah 137:1). Nevertheless, according to most authorities, swearing an oath that mentions Hashem’s Name is a more serious Torah violation (Rambam, Hilchos Shavuos 2:4).

Taking Hashem’s Name in vain

It is also prohibited min haTorah to use Hashem’s Name unnecessarily, even when one is not taking an oath. This is prohibited as a mitzvas Aseh, since it violates the words of the Torah, es Hashem Elokecha tira, “You shall fear Hashem your G-d” (Devarim 6:13). Thus, it is prohibited min haTorah for someone to say as an expletive, “For G-d’s sake,” “Oh, my G-d in Heaven” or similar exclamations.

In this context, the following halachic question is raised:

“Is there anything wrong with saying: ‘Just as G-d is True, so this is true!’ Does halacha consider this to be an oath?”

This question is discussed almost five hundred years ago by the Radbaz (Shu”t #17), who writes that these types of declarations are serious infractions of the Torah and are considered blasphemous. Anyone who makes such statements should be severely reprimanded and punished, so that he realizes how sinful this is and will take it upon himself to do teshuvah on his crime. The Radbaz states that it is very wrong to compare the existence and truth of anything else to Hashem’s existence and truth. Furthermore, someone who makes such a declaration about a falsehood denies the Creator and forfeits his share in the World to Come.

A friend in vain

At this point, we have enough information to examine Mr. Closefriend’s question posed above:

“A close friend of mine often makes comments like ‘for G-d’s sake,’ which I know are things we should avoid saying. I wanted my friend to be one of the witnesses at my wedding, but an acquaintance mentioned that my friend may not be a kosher witness, because he uses G-d’s name in vain. Is this really true?”

Although Mr. Closefriend should convince his close friend that this irreverent referring to Hashem and His holy Name is prohibited, this use does not qualify as making an oath in vain, but as a violation of the mitzvas Aseh of fearing Hashem (Temurah 4a). As such, there is a difference in halacha:

Two categories of people are disqualified as witnesses because they are sinners.

One is someone who has demonstrated that he will compromise halacha for monetary benefit (Rambam, Hilchos Edus 10:4).

The other category is someone who violates a sin so severe that, during the time of the Sanhedrin, he could be punished with malkus (Rambam, Hilchos Edus 10:1-3; Sefer Hamitzvos, Lo Sa’aseh 286; Sefer Hachinuch, Mitzvah 75). Therefore, someone who curses people using G-d’s Name or one who swears is not a valid witness at a wedding ceremony. However, although it is highly sinful to violate mitzvos Aseh, one who violates them is not invalidated as a witness.

Conclusion

In addition to the above-mentioned reasons why one should be careful how and when one uses Hashem’s Name, the Sefer Hachinuch (Mitzvah 231) mentions other reasons not to curse people. Cursing creates conflict, something we certainly want to avoid.  Furthermore, we want to learn to develop our self-control.

The Paw, the Jaw and the Maw

When Yaakov sent Eisav all those animals, he did not include instructions that the kosher ones required giving certain parts to a kohein. So, we need to fill in the rest of the picture.

Question #1: Four leg or foreleg?

Why does the kohein receive the femur, if, in any instance, we are accustomed not to eat the hindquarters?

Question #2: Tongue in cheek!

Can the kohanim really corner the market on kosher tongue?

Question #3: The jaw and the maw!

How many of a cow’s stomachs does a kohein receive?

Introduction:

There are a total of 24 different gifts that the Torah requires be given to the kohein (Chullin 132b). Many of these, such as bikkurim and the meat and hides from various korbanos, are applicable only when we have the Beis Hamikdash. Others, such as terumah, pertain only to produce that grows in Eretz Yisroel, or, because of a rabbinic requirement, on lands near Eretz Yisroel, such as Egypt and Jordan. On the other hand, other mitzvos, such as pidyon haben, challah, petter chamor (the redemption of a firstborn donkey) and the firstborn kosher animal, are relevant everywhere and at all times. Although challah is applicable everywhere today, since a kohein may eat challah only when he is tahor, prevalent practice is that it is burnt or allowed to spoil, rather than given to a kohein. Therefore, in the contemporary world, the kohein does not end up benefiting from this mitzvah.

Among the gifts the kohein receives are three parts of every slaughtered animal. (As we shall see later, whether this mitzvah applies only in Eretz Yisroel or also in chutz la’aretz is the subject of a dispute between Tanna’im.) The pasuk states: “And this shall be the allocation to which the kohanim are entitled of the people, from those who slaughter animals, whether species of cattle or of flock: they must give the kohein the zero’a (the arm), the lecha’ya’yim (the cheeks or jaws) and the keivah (the fourth of an animal’s stomachs, called the abomasum)” [Devorim 18:3]. We will discuss shortly exactly what parts are included in “the arm, the cheeks and the abomasum.”

Of the people

The pasuk leads us to several questions that we will address. Why does it emphasize that the kohanim receive these gifts because they “are of the people”? It would be highly unusual for the animals themselves to give these portions to the kohein, or for anyone other than “people” to do so!

I will answer this question shortly, but will first present a different, but related, issue. Does the mitzvah of giving away the zero’a, lecha’ya’yim and keivah apply to a kohein’s own animal? In other words, must a kohein give the zero’a, lecha’ya’yim and keivah to another kohein?

The Tosefta (Peah 2:13) states that not only may a kohein keep the zero’a, lecha’ya’yim and keivah for himself, but a Levi, also, may keep them for himself. The Gemara (Chullin 131a) cites that the great amora,Rav, was uncertain as to whether the Levi is obligated to give zero’a, lecha’ya’yim and keivah or not.

Why does the Tosefta exempt a Levi from giving zero’a, lecha’ya’yim and keivah?

In true Jewish style, we are going to answer this question with a question: Why does it emphasize that the kohanim receive these because they “are of the people”?

The answer is that the word the Torah uses for “of the people”, העם, am, implies “the common people,” not the top echelons of the Jewish people, who are always called Bnei Yisroel.The pasuk implies that the mitzvah to give zero’a, lecha’ya’yim and keivah applies only to the “commoners.” A Levi may contend that he is not part of the “ordinary” people, but of special stock. Thus, the word עם, in this pasuk, should probably not be translated as “the people,” but the “common people.”

By the people

Who is obligated to perform this mitzvah?

The pasuk states that the mitzvah is observed by “those who slaughter animals,” implying that it is the shocheit who is obligated to perform the mitzvah. But, is it not the owner of the animal who is obligated to give away part of his animal to a kohein, and not the person he hired to shecht it for him?

The Gemara rules that the obligation of the mitzvah falls on the shocheit, even when someone else owns the animal (Chullin 132a). On the other hand, the owner of the animal, not the shocheit, has the right to choose which kohein or kohanim receive the zero’a, lecha’ya’yim and keivah (Tosefta, Peah 2:13; Rema, Yoreh Deah 61:28). In other words, whereas the owner may decide which kohein receives the matanos, the shocheit is the one who actually presents them. He asks the owner to which kohein he should give them (Taz, Yoreh Deah 61:29 and Pri Megadim ad loc.).

If the owner of the animal has a grandson who is a kohein, he may instruct the shocheit to give the zero’a, lecha’ya’yim and keivah to his grandson.

For the people

What if there is no kohein nearby when I shecht the animal? This question was a more acute problem in the era before refrigeration, particularly in hot climates where meat will spoil if it is not consumed immediately after slaughter (unless salted heavily). The Tosefta explains that if no kohein is available, the Yisroel should evaluate what the zero’a, lecha’ya’yim and keivah of this animal are worth and keep them for himself, and then compensate a kohein, when he locates one, the value of the three pieces of meat (Chullin 9:7).

Share the wealth!

Although the Torah mentions giving three different parts of the animal, the act is counted as only one mitzvah — by the Rambam as mitzvas aseih #143 and by the Sefer Hachinuch as mitzvah #506. Notwithstanding that giving the three parts constitutes one mitzvah, they may be given to more than one kohein, as the Gemara states: Rav Chisda says, “The zero’a to one, the lecha’ya’yim to two and the keivah to one,” which means that the zero’a, lecha’ya’yim and keivah are divided to be given to a total of four different kohanim.

The Gemara then challenges Rav Chisda: “Is this really true? Did not Rav Yitzchak bar Yosef teach that, in Eretz Yisroel, the practice is to divide the zero’a into its two component bones,” giving each one (with its attached meat) to a different kohein! Thus, the custom in Eretz Yisroel was to divide the zero’a between two different kohanim, unlike Rav Chisda’s ruling.

The Gemara answers that when giving the zero’a from a bull, each bone and the meat on that bone may be given to a different kohein – thus, you are splitting the zero’a between two kohanim. Rav Chisda was discussing a sheep, goat or calf, which are much smaller, where splitting the zero’a between two kohanim would provide each kohein with a portion too small to be a meaningful gift (Chullin 132b; Shulchan Aruch, Yoreh Deah 61:9). Thus, when donating matanos of a bull, they can be given to five different kohanim, and when donating those of a smaller animal, they can be given to four kohanim.

Dividing the matanos

The Rambam permits giving all three matanos to the same kohein (Hilchos Bikkurim 9:17). Although, in general, the Gemara discourages giving all of one’s matanos to the same kohein, preferring that one “spread the wealth” among the kohanim, this applies only when all of one’s matnos kehunah are provided to the same individual. However, giving the zero’a, lecha’ya’yim and keivah to one kohein, while giving terumah to a different kohein, is certainly not a problem, even should one always give the zero’a, lecha’ya’yim and keivah to the same kohein (Pri Chadash, Yoreh Deah 61:15), and certainly not a concern if done on an occasional basis.

Fowl play!

Does this mitzvah apply to fowl?

The Mishnah (Chullin 11:1) indicates that it does not. The wording of the Mishnah is that “the mitzvah of zero’a, lecha’ya’yim and keivah has a stringency over the mitzvah of reishis hageiz, in that zero’a, lecha’ya’yim and keivah apply to cattle and flock… whereas reishis hageiz applies only to sheep.” This is implied by the pasuk when it rules that the mitzvah applies to “species of cattle or of flock.” In other words, when shechting a bird, there is no mitzvah to give away part of it, and all a kohein can do is “cry fowl!”

What’s gnu?

The inference of the Gemara (Chullin 132a, 135a; see also, Rashi, Devorim 18:3) and the conclusion of the Shulchan Aruch (Yoreh Deah 61:17) is that the mitzvah of zero’a, lecha’ya’yim and keivah does not apply to chayos, including, for example, deer, giraffe, pronghorn and wildebeest. Again, this is implied by the pasuk, when it states that the mitzvah applies to species of cattle or of flock. So, now you know that the next time you shecht a giraffe, you can keep and pickle that long tongue for yourself!

Barbecued and with mustard!

The kohein is supposed to eat these parts as would a wealthy man. The Gemara suggests that he “barbecue them and eat them with mustard” (Bechoros 27a). These are not requirements, but suggestions: they should be eaten in a royal, honorable manner.

One or two?

Why is the word zero’a, foreleg, in the Torah singular and lecha’ya’yim plural? Obviously, since an animal has only one keivah, this word must be singular – but an animal has two forelegs and four jaw bones, an upper one and a lower one on each side. So why does the Torah teach that the kohein receives zero’a (singular) and lecha’ya’yim (plural)?

The answer is that the kohein receives only one of the two forelegs, and the conclusion is that he receives the right foreleg, which corresponds to the human right arm (Tosefta, Chullin 9:12; Chullin 134b). We will discuss shortly how much of this foreleg he receives. But the kohein receives both jaws, right and left, and everything included, as we will soon see.

Four leg or foreleg?

At this point, let us examine our opening question: “Why does the kohein receive the femur, if, in any instance, we are accustomed not to eat the hindquarters?”

Our questioner has erred, not realizing that although animals have four legs, they are not equivalent. The femur is the extension of the hind leg, corresponding to the human thigh bone. Just as we have no femur in our anterior appendages, which we refer to as our hands and arms, neither do animals. Thus, the answer to this question is that the zero’a is a foreleg and not in the hindquarters, and, in fact, has no femur.

An arm and a leg?

How much of the animal’s foreleg does the kohein get? The Mishnah (Chullin 134b) teaches that it includes from the “joint of the arkuvah until the palm of the foreleg.” From the Mishnah’s description, we know that one border is a joint; but which joint? If you look at the foreleg of an animal, you will notice that it has several joints. Cattle have no fingers, but, from the ground up, the bones of an animal’s joint can be described as the phalanges (corresponding to the human fingers), the metacarpus (the hand), the carpus (the wrist), the radius and ulna (which together form the lower arm), the humerus (the upper arm) and the shoulder blade. The bones at the very bottom have no meat (“muscle” and “meat” are two ways of referring to the same thing) attached to them; as we go up the leg, the meat increases, both in quality and quantity.

What is the joint of the arkuvah?

The Gemara (Chullin 76a, 122b) uses an expression arkuvah hanimkeres im harosh, which literally means “the joint sold with the head.” This market term meant that parts of the animal that contain little in the way of edible meat were sold together. Just as the head contains little muscle, the bones beyond this joint contain little meat and were sold “together with the head.”

The early authorities dispute what is included in this gift to the kohein; in other words, what is meant by the Mishnah’s words: From the joint of the arkuvah until the palm of the foreleg. There are three basic opinions:

1. According to the Rambam, the kohein receives the metacarpus and the radius/ulna bones and the meat attached to them. Unless you are a veterinarian or a butcher, you are not familiar with these as cuts of meat. Even in large cattle, there is no meat to speak of on the metacarpus, and little meat on the radius/ulna; what is there is usually thrown into the butcher’s ground beef pile.

2. According to the Shulchan Aruch, the two parts are the humerus and the radius/ulna. The metacarpus is considered beyond the palm of the foreleg, and the the perek shel arkuvah is the shoulder blade. The muscle on the humerus does include some quality meat that is considered shoulder roast or shoulder steak – not as good as ribeye or brisket, but certainly quality meat cuts.

Both opinions we have quoted above contend that the zero’a includes two bones and the meat on those bones, and the Tosefta (Chullin 9:3) adds also the joint above the bone.

3. According to the disciples of the Vilna Gaon, he held that the mitzvah included only one bone and the meat on that bone.

The halacha is that the kohein receives the bone, plus the meat attached to it.

JAWS!

The pasuk said “jaws” plural, which could mean two jaw bones, or all four. This is the subject of an ancient dispute among halachic authorities, since the Targum Yonasan explains that the kohein receives both the upper and lower jaw, an approach to which the Vilna Gaon concurs, maintaining that this is the correct girsa in the Sifrei (Shoftim #165). Those who rule this way, which include the Gra and the Aruch Hashulchan (Yoreh Deah 61:12), conclude that the kohein receives both sides of the upper jaw in addition to the lower jaw. This approach means that the kohein receives all of the “cheek meats” of the animal.

However, most poskim (Rashi, Chullin 134b, s.v. haperek shel lechi; Pri Chadash, Yoreh Deah 61:5; Yad Efrayim to Yoreh Deah 61:3) rule that the kohein receives only the lower jaw, and this is the girsa that we have in the Sifrei. According to this approach, the kohein receives only the meat attached to the lower jaw, but not what is attached to the upper jaw.

Jawed down

How much is included with the lecha’ya’yim? The Mishnah states that it includes from “the joint of the jaw until the pikah of the throat” (Chullin 134b). The “pikah” is the top of the trachea (see Pri Chadash, Yoreh Deah 61:5). The lecha’ya’yim includes, therefore, the tongue, some meat, hide, bone, hair, and, on sheep, a small amount of wool (Chullin 134b).

Since the lower jaw includes the tongue (Rashi; Rav), this means that, indeed, where these mitzvos are observed, the kohanim have a virtual monopoly on the tongues.

Why did I write “in places where these mitzvos are observed?” The answer is that there is a dispute among tanna’im whether this mitzvah applies in chutz la’aretz, notwithstanding that it is not one of the mitzvos ha’teluyos ba’aretz, a mitzvah dependent on the land. There is a major discussion among halachic authorities how we rule in this dispute.

The maw?

What is the keivah? Several of the chumashim I have seen translate the word as “maw,” but this translation is neither professional nor accurate, since the word maw simply means a stomach, mouth or other opening. (The origin of the word maw is a “bag” or other receptacle, and it later came to mean “mouth” or “stomach,” since these are “bag” functions of the body — areas that receive food.) To translate keivah as maw is, therefore, inaccurate, because the word “maw” does not refer to a specific stomach or compartment of the stomach, and, if it did, it would refer to the first stomach of cattle, the rumen or paunch. The keivah, however, is the fourth, and last, stomach.

Can’t stomach it!

At this point, we can examine the last of our opening questions: How many of a cow’s stomachs does a kohein get?

All kosher beheimos are ruminants, and all of them have several stomachs, or more technically accurate, a four-chambered stomach. The four parts are called the rumen, reticulum, obasum, and the abomasum. As I mentioned above, the keivah is the abomasum. Although today the keivah has limited value, in earlier days, it was the natural source of the enzyme called rennet, which is used to curd milk into cheese. How kosher rennet, which is halachically meat, may be used to curd milk into kosher cheese is beyond today’s topic, but rennet can be used, and, in earlier times, had much commercial value.

There are several questions germane to this mitzvah that we have not yet discussed; we will leave them for a future article.

Conclusion

Why does the Torah give the kohein these three, unusual parts of the animal?

The Gemara (Chullin 134b), quoted by Rashi (Devorim 18:3), explains that these three remind us of Pinchas’s courageous and zealous act, when he sanctified Hashem’s Name during the Midyan debacle – he grabbed his spear with his hand, he prayed with his mouth (Tehillim 106:30), and he plunged his weapon into the stomach of the dishonorable woman Kozbi, who brought Zimri to sin (see Bamidbar 25:8). Thus, every kohein is rewarded in Pinchas’s merit, or, more accurately, all the Bnei Yisroel are constantly reminded of what Pinchas did to save the Jewish people.

Do I Have to Tell the Truth?‎

Question #1: The Truth

May I take credit for something that I did not do myself?

Question #2: The Whole Truth

Must I make a full disclosure when it may cause a negative outcome?

Question #3: Nothing but the Truth!

Is it permitted to “add” to the truth?

Introduction:

A person must maintain total integrity in all his dealings – after all, we are commanded to act as Hashem does in all our deeds, and Hashem’s seal is truth (Shabbos 55a). Furthermore, someone meticulously honest and truthful will merit receiving the presence of the Shechinah.

Conversely, the Gemara (Sanhedrin 103a) teaches that habitual liars will not merit to receive the Shechinah’s presence. This is derived from the pasuk, Dover shekarim lo yikon leneged einai, “He who speaks lies will not be established in My sight” (Tehillim 101:7). A person who gains nothing from his lies and simply has no regard for telling the truth is included in the “kat shakranim” (pack of liars) who will not merit to meet Hashem (Shaarei Teshuvah 3:181, 186). This category also includes people who fail to keep their word (Shaarei Teshuvah 3:183).

Truth is so important that the Gemara teaches, Hafoch bineveilasa velo seifoch bemilei, “Turn over a carcass and do not turn over your words” (Pesachim 113a). This means that it is preferable to do unpleasant, malodorous work rather than talk deceitfully.

Therefore, the Torah warns, Midevar sheker tirchak, “Keep distant from a false matter” (Shemos 23:7). Nowhere else does the Torah command that we must “keep distant” from an activity (Sefer Hachinuch #74), which emphasizes how far we must keep from falsehood (Mesilas Yesharim, Chapter 11). Even taking credit for something that one did not do is considered a falsehood (Shaarei Teshuvah 3:184).

Truth in education

Regarding chinuch, we are taught, “Do not promise something to a child without giving it to him, because this teaches him to lie” (Sukkah 46b).

In addition to the halachic requirement of being meticulously honest, there is also a tangible benefit in being known as someone who always tells the truth. As the Gemara notes: “Someone who lies is not believed even when he tells the truth” (Sanhedrin 89b).

The whole truth

Despite the importance of telling the truth, there are situations where the Torah allows one to be imprecise because of a greater good. It is of paramount importance not to hurt people’s feelings, harm their reputation, embarrass them or create machlokes (Bava Metzia 23b with Rif and Tosafos). When placed in a situation in which full disclosure will cause one of these negative outcomes, one should avoid fabricating a story, but should omit the harmful information (see Chofetz Chayim, Hilchos Rechilus 1:8). However, if machlokes may result if one answers truthfully, one must modify the truth, rather than create ill feeling.

Why?

Why is it permitted to alter the facts in order to avoid hurting someone’s feelings?

In general, the Torah does not accept that the end justifies the means. Thus, one is generally not permitted to do something halachically wrong in order to accomplish a positive result. However, altering the truth to avoid machlokes or to save someone from hurt is an exception to this rule.

Even in these situations, changing the truth should be a last resort. When the situation can be resolved without resorting to untruth, one must do so. Furthermore, it is preferable to give a truthful answer that omits the harmful information, rather than modify the truth (see Chofetz Chayim, Hilchos Rechilus 1:8). However, when there is no choice other than modifying the truth, one is required to do so.

When should the truth be modified?

There are five categories of cases when modifying the truth is permitted. They are:

1. Shalom

One is required to avoid dispute or ill feeling even if it requires distorting the truth. This also includes situations where telling the truth will result in loshon hara. Therefore, if someone is asked, “What did so-and-so say about me?” and the true answer to this question will result in loshon hara or ill feeling, one may not give a complete answer. As mentioned above, it is preferable to answer in a way that is not an outright untruth, such as telling part of the story that has no negative ramifications. If there is no choice, one should resort to fabrication rather than telling the truth that includes loshon hara or creates machlokes (Chofetz Chayim, Hilchos Rechilus 1:8).

It should be noted that when there is no way to avoid modifying the truth for the sake of shalom, it is not only permitted but obligatory in order to avoid machlokes or hurting someone’s feelings (Rif, Bava Metzia 23b).

Here is an example: Reuven refused to lend Shimon money, because he felt that Shimon was a credit risk.Shimon discovered that Reuven loaned money to someone else, whereupon Shimon asked Reuven why his (Shimon’s) request was turned down. To avoid hurting Shimon’s feelings or creating machlokes, Reuven may tell him that, at the time, he had no money available to lend. As mentioned above, this approach should be used only as a last resort. It is preferable for Reuven to change the subject or respond to the answer in a different, inoffensive way that is not a fabrication.

For the same reason (to avoid hurting a person’s feelings), it is permitted to praise a person’s performance to make him feel good, even if the performance was actually mediocre (Kesubos 17a). Similarly, one should tell the purchaser of a new garment that it looks great, even if he thinks the opposite.

What is the halacha when a woman who values your judgment asks you how her new dress looks? If the dress does not look nice, and the situation can be modified (such as, the dress can be tailored or exchanged), you should give the appropriate advice. However, if there is no option to do anything with the dress, you should remark that it looks nice. After all, there are certainly some people who will think it looks nice on her.

2. Modesty

It is advisable to act humbly and to answer questions modestly. For example, a Torah scholar who is asked how much he knows of Shas (the entire Talmud) is permitted to say that he is familiar with a few mesechtos, even when he knows the entire Shas thoroughly (Rashi, Bava Metzia 23b). This statement is permitted, even though it is technically not true. It should be noted that modifying the truth in this situation is not required (Rif, Bava Metzia 23b). For example, Sefer Hassidim (#1061) states that it is preferable not to say a lie in order to be modest, but instead to change the subject.

Likewise, one should be careful not to boast or advertise the chesed that one performs. A person who is asked about his chesed activities should downplay his role and understate his involvement.

If a posek (halachic authority) is asked whether he is qualified to pasken a certain shaylah, he should answer truthfully, but not boastfully. He can say something like, “There are people who ask me shaylos,” or “Rav so-and-so told me that I may pasken,” which, if said in a humble tone of voice, is informative and not boastful. In this situation, underplaying his knowledge is counterproductive, since the person who has a shaylah will not feel comfortable that he can ask (Tosafos, Bava Metzia 23b s.v. bemesechta).

A person heavily involved in chesed projects is permitted to describe his full role, in order to encourage other people to be involved in chesed.

Someone who observes a halachic stringency must try to keep it a secret. One is even permitted to give a false reason for his behavior, rather than explain that he observes a chumrah (see Brachos 53b). For example, while attending a simcha where one’s chumrah is not observed, he should hide the fact that he is not eating. If someone notices that he is not eating, he may say that he already attended another simcha and ate there. He may say this, even if he did not attend a simcha that night and ate at home, since his statement is true (he has attended other smachos previously). This is better than saying that one’s stomach is upset (when it is not), which is an outright untruth. However, if he feels that the only excuse he can use is that he has an upset stomach, he may say so, even if he is feeling fine.

It should be noted that, in such cases as well, modifying the truth to act modestly is not required, but merely permitted (Rif to Bava Metzia 23b; Sefer Hassidim #1061).

3. To save embarrassment

If necessary, one may modify the truth to save from an embarrassing situation or to protect privacy. Therefore, if someone asks me a question that infringes on my privacy, I may give him an untrue answer, if there is no other way to avoid the situation without being offensive (Bava Metzia 23b). It is usually better to give an untrue answer than to point out that the question was inappropriate, which might embarrass the person asking the question. Similarly, if asked about someone’s personal habits, I may modify my answer, if the truth reveals private information that the person does not want divulged (Maharal, Bava Metzia 23b).

It is permitted to modify the truth to save someone from embarrassment, even if it is myself that I am saving and I also created the uncomfortable situation. For the same reason, if asked a question on a Gemara to which I do not know the answer but should, I may reply that I have not learned that Gemara recently, even if I have (see Rambam, Hilchos Aveidah 14:13and Lechem Mishneh).

Although it is permitted to modify the truth to save oneself from embarrassment, it is not preferred behavior (Orach Meisharim). Of course, the best thing is to know the Gemara adequately enough to answer the question (Kiddushin 30a).

It is forbidden to be untruthful if it causes financial harm. For example, it is prohibited to deny having damaged someone’s property — even if the goal is to avoid embarrassment — if this may exempt him from compensating the owner. Similarly, it is prohibited to tell the boss that one is late to work because of a fictitious traffic tie-up.

Similarly, one may not deceive someone about a shidduch by providing misinformation that might affect the other party.

Truth in litigation

There is no heter, whatsoever, to mislead a Beis Din, even if I know that the other side is misrepresenting the facts. I may set the record straight and say that information is being fabricated.

Money received through a din Torah because of misrepresentation is considered stolen. Furthermore, a lawyer or to’en rabbani (rabbinic legal adviser) who suggests withholding relevant information in order to win a case violates several serious prohibitions.

4. Protecting someone

One may modify the truth to protect a person from harm or to prevent him from sinning. Again, the halachic principle is that, in this instance, the ends (avoiding sin) justify the means (altering the facts).

A few examples will clarify what we mean. An unsavory or untrustworthy person asks you where you were a guest last Shabbos, because he wants to invite himself to the same host. Since the results may be detrimental, you may tell the untrustworthy person that you ate at home, even if this is not true. Early poskim describe the following situation: “Someone who is asked how he was received as a guest may lie, to protect the host from becoming inundated with more guests than he can afford” (Rashi, Bava Metzia 24a).

Similarly, if I am asked by someone who is a poor credit risk where he can borrow money, I may tell him that I don’t know, rather than putting potential lenders in an uncomfortable position or placing them at risk.

It is permitted to modify the truth to prevent someone from sinning. In this context, there is a halacha that many people find surprising. Someone thinks that what he is doing is permitted, but you know that it is forbidden. You know that the perpetrator will not accept your halachic opinion, unless you quote it in the name of a well-known posek. It is permitted (but not required) to quote the psak in the name of a well-known posek, even if you have no basis to say that he said this, so that the person accepts the halacha and, therefore, does not sin (Shabbos 115a).

The Gemara records several instances of this ruling (Eruvin 51a; Pesachim 27a; see Magen Avraham,Chapter 156). Here is one example: In pre-refrigeration days, vegetables cut up before Yom Kippur would spoil before the fast ended. Rav Yehudah noticed that the vegetables were being cut up on Yom Kippur in a way that violated the halacha, but was uncertain whether he would be obeyed if he told them to stop. To put an end to the practice, he told the perpetrators that he had received a letter from Rabbi Yochanan prohibiting it.

Under the category of protecting people from undesirable situations, the Gemara tells us a very interesting story about the great tzaddik, Iyov. When he heard about a widow who wanted to remarry but was not receiving any shidduch suggestions, Iyov would invent a family relationship with the woman, in order to improve her shidduch prospects (Bava Basra 16a).

If I am asked questions that will lead in an undesirable direction, it is permitted to modify the truth in order to politely cut off the questioning. The Gemara tells us the following story: Alexander the Great once met the Talmudic scholars of the Negev and asked them several philosophic questions. When he asked them whether light was created first or darkness, they responded that this question cannot be answered. The Gemara points out that it states clearly that darkness existed before light(Bereishis 1:2-3). Nevertheless, the scholars refrained from answering Alexander, to forestall his asking other questions that might lead to blasphemy (Tamid 32a). Therefore, when you suspect someone may turn the conversation into a topic that you do not wish to discuss, you may change the subject or say that you do not know the answer to the question.

5. Exaggeration

It is permitted to exaggerate, even though the literal meaning of one’s words is inaccurate. So long as one’s intent is clear, this is neither deceptive nor dishonest, but simply idiomatic. Therefore, it is permitted to say that something has happened “millions of times,” since everyone understands that this is an exaggeration. Similarly, it is permitted to call a fellow Jew “my brother,” since all Jews are related and, furthermore, we are all brothers in mitzvos. It is also permitted to call a student “my son,” since the pasuk refers to our students this way (Shabbos 31a).

Some contemporary poskim justify the widespread practice of printing wedding invitations knowing that the time on the invitation is earlier than the simcha will take place. Since this is intended to give people a sense of when the simcha will actually transpire, it does not violate the mitzvah of being truthful.

There are a few other instances where one is permitted to say something, even though the literal meaning of one’s words is not exactly true. Following a halachic discussion with his disciples, Rabbi Akiva said that the halacha accorded with the opinion of one of his students, although it was obvious that the halacha was otherwise. Stating that the halacha was like this student meant that the student’s reasoning was very solid, and the compliment would encourage the students to study with more enthusiasm (Eruvin 13a).

An opposite pedagogic usage is found in a different passage of Gemara (Moed Katan 16a). Bar Kappara, one of Rebbe’s disciples, once said something disrespectful about Rebbe. Realizing that he had a halachic responsibility to reprimand Bar Kappara, the next time Bar Kappara came to visit Rebbe, Rebbe told him eini makircha mei’olam, “I have never met you.” Bar Kappara understood that Rebbe meant that he did not want to have anything to do with Bar Kappara. Bar Kappara repented and Rebbe befriended him once again.

However, how could Rebbe make an untruthful statement? Because Bar Kappara understood Rebbe’s intent, this was not regarded as an untruth. Furthermore, Rebbe’s words, eini makircha mei’olam, could also mean “I do not truly know who you are,” words that are actually very truthful — does one human being ever really know another? (Orach Meisharim 9:ftn 2) Incidentally, we see that even a statement like this, which was fully understood, should preferably be expressed in a way that has a truthful meaning, as well.

From the foregoing, it is apparent that the halachos of telling the truth are far more complex than most people realize. Those who tell the truth will receive the presence of the Shechinah. Many special blessings are bestowed on someone who is meticulous about telling only the truth, as required by halacha.

The Gemara tells about the community of Kishuta where everyone was very careful never to lie. In reward for this, none of them ever died prematurely (Sanhedrin 97a).

Conclusion

Rav Yaakov Kamenetski was once asked why he lived so long. (Several Gemara discussions imply that it is proper to try to answer this question accurately.) After contemplating the question for a while, Rav Yaakov reluctantly answered, “Probably in the merit of the fact that I have never told a lie.”

Why is telling the truth a merit for longevity?

As mentioned earlier, someone who is meticulously honest and truthful will merit receiving the Shechinah’s presence (Orach Meisharim 9:ftn 3). The pasuk in Mishlei (16:15) teaches, be’or pnei Melech chayim, “Those who are in the light of the King will live.” Furthermore, Hashem’s brachos rest on those who imitate His ways, and His essence is truth (Sefer Hachinuch #74). Therefore, those who live with meticulous honesty are rewarded with long, productive lives. May we all merit this reward!

Who Was Eliezer?

Question #1: Who

Who was the greatest talmid chacham in history to have been born in Syria?

Question #2: Was

Was Eliezer a tzadik or a rosha? What difference does it make to us?

Question #3: Eliezer?

What halachos do we derive from Eliezer’s actions?

Introduction:

The Jewish community of Syria has been home to some of the greatest gedolei Yisroel the world has ever known, such as Rav Chayim Vital, the primary disciple of the Arizal and the source of virtually all our knowledge of the Arizal’s kabbalistic teachings. Rav Chayim’s son, Rav Shmuel Vital, the major conduit of kabbalistic teaching in his day, lived most of his life in Damascus. And yet, for most of its Jewish history, Damascus has played less prominence than its northwestern neighbor, Aleppo, famed as Aram Tzovah, home of generations of gedolei Yisroel. And these two Jewish communities, which share a massive diaspora spreading from Argentina, through Panama, Mexico, New Jersey, New York, and Jerusalem, are only two of the major Torah communities that once thrived in the northern part of the Levant. At one time in history, there were literally hundreds of proud Jewish communities scattered throughout what are today Syria, Lebanon, Kurdistan, and southern Turkey; each was justifiably proud of its own minhagim, Jewish traditions and Torah scholars; each had its own Jewish language or dialect.

But this discussion is taking us afield from today’s topic. One of the greatest individuals who hailed from Syria to have walked the face of the earth may have been Eliezer, Avraham’s servant. In its only reference to any personal data about him, the Torah calls him Eliezer the Damascene. (By the way, the chief rabbinate position there, once a highly coveted post, is unfilled at the moment, should you happen to know someone looking for a rabbinical post with a prestigious history.)

The Midrash Rabbah explains that Eliezer was in total control of himself, meaning that he was a highly spiritual individual, a big tzadik, who had mastered his yeitzer hora, his personal inclination to do evil. To quote the midrash, “Eliezer ruled over himself on the same level that Avraham ruled over himself” (Bereishis Rabbah 59:8; see also Yerushalmi Berachos 9:5; Shir Hashirim Rabbah 3:5). The Gemara’s description of Eliezer certainly sustains this impression of his personal greatness. In Yoma (28b), the Gemara describes him as an elder who spent his unoccupied time studying in the yeshivah.

This statement is even more unusual, in that we have a general rule that a gentile is forbidden to study Torah, and, if he does so, he is chayov misah, understood to mean that he will incur the punishment of misah bidei shamayim, a premature death (see Tosafos, Yevamos 2a s.v. Va’achos). Presumably, because Eliezer lived before the Torah was given to the Jewish people, his achieving massive Torah scholarship is viewed favorably by Chazal.

The same passage of Gemara creates a drosha on the reference to him as a Damascene, Damasek. The Gemara explains the word to mean that Eliezer “ladled” liberally from the Torah of Avraham and taught others. In other words, not only was he a regular participant in the yeshivah’s Torah discussions, he was a lecturer and a meishiv in the yeshivah, what we would call a ra’m (rosh mesivta) in the greatest yeshivah of his era, that was established by Avraham Avinu and attended by his disciples. Without question, this Gemara bills him as the greatest Torah scholar in history to have hailed from Syria. Prior to the birth of his sons, who does Avraham consider his worthy heir, as he tells Hashem in parshas Lech Lecha (Bereishis 15:2)? According to Chazal, who accompanies Avraham and Yitzchak on their way to the Akeidah? This is the individual whom Avraham employed to find a shidduch for his cherished son Yitzchak, and for virtually all his endeavors. And whom does Avraham use as his lieutenant commander, when he fields his army to save his nephew Lot?

Germane to this war, the posuk says that Avraham had 318 men in his army when he went to fight the victorious, powerful and world-conquering four armies of Kedorla’omer (Bereishis 14:14). The Gemara (Nedarim 32a) notes that the gematriya of the word Eliezer is 318. Based on this hermeneutical source, the Gemara interprets that Avraham Avinu’s winning battalions contained only two soldiers – Avraham and Eliezer. In other words, Avraham and Eliezer vanquished the Kedorla’omer dragon with the archetypical, traditional Jewish army of only generals and no soldiers. I will continue to explain this midrash later, but, for our purposes now, suffice it to say that this demonstrates Eliezer’s tzidkus and his level of faith and confidence in the Almighty. Who else would attack an army with only one associate, particularly if that associate’s commanding officer is so well-trained and experienced in military tactics as Avraham?

Avraham’s resources

Eliezer is referred to as the “elder of Avraham’s household, who rules over all that he owns.” He was a fully trusted, senior manager of all of Avraham’s property, including all his employees, his servants and slaves. Eliezer was what we would call the CEO or COO of Avraham’s extensive business and personal holdings.

How wealthy was Avraham? Chazal tell us that he owned the entire world (Bereishis Rabbah, 43, 5 and Shemos Rabbah 15, 8). That Avraham entrusts all his worldly possessions to Eliezer reflects one of two things: either that Avraham has little concern for his physical property – he realizes that “you can’t take it with you” — or, alternatively, Avraham has such confidence in Eliezer’s total commitment to fulfill what Avraham asks that he trusts Eliezer completely and has no need to verify what is done. (The likelihood is that both of these factors are true.) History is replete with individuals who were given this amount of trust, and employers and rulers who learned to regret this decision. But not Avraham…

Yitzchak’s shidduch

This incredible tzadik, Eliezer, was then given virtually complete control over the most important matter in Avraham’s life. Avraham has a son, born when his parents are quite aged and, therefore, almost certainly destined for early-orphaned status. Avraham defies all odds and is still alive and alert to direct Yitzchak’s shidduch search.

Yitzchak will clearly continue Avraham’s legacy, that to which he has devoted his entire life. Yitzchak follows in his father’s footsteps perfectly, and even looks exactly like his father, notwithstanding that Avraham is his senior by one hundred years [until Avraham requests that his appearance reflect his age] (Bava Metzia 87a).

For Yitzchak to fulfill his legacy, he needs a wife capable of being his life’s partner, one who can proudly and boldly challenge the entire world. To quote Chazal, Avraham is called “ha’ivri,” not because he descended from the great Torah scholar and Rosh Yeshivah, Eiver, and also not because he was the original “Hebrew,” but because he stood alone opposed to the values of the entire world at his time. As Chazal express it, the entire world stood on one side and Avraham on the other. This mission can be continued only by Yitzchak, who must have descendants devoted to the family business, and for this he needs a wife appropriate to her role.

Who gets entrusted with making sure that this legacy will be perpetuated? Eliezer. Yet, it seems that Eliezer should be the least likely candidate for the position. As Rashi notes, he himself has a daughter for whom he is desperately trying to find an appropriate shidduch – and, to Eliezer, Yitzchak appears as the perfect shidduch! This sounds like the classic case of appointing a fox to guard the chicken coop!

Why is Avraham sending someone to carry out a difficult assignment, when this agent has a vested interest in its collapse? Furthermore, Avraham provides Eliezer with an excuse for failure of the mission – a claim, verified or not, that he located an appropriate girl, but she refused to travel with a group of unknown men, preferring that her suitor come for her. Is this not the accepted approach in all societies until modern times, and, certainly, the seemingly most appropriate and tzeniyus-dik way to do things?!

Tzadik or rosha?

At this point, let us discuss the second of our opening questions: “Was Eliezer a tzadik or a rosha?”

How can we even ask such a question? Did we not already demonstrate that he was one of the greatest tzadikim of all time!

This brings to mind a criticism leveled at Rabbi Akiva, who identified the mekosheish (the person who violated the laws of Shabbos – Bamidbar 15:32) as Tzelofchad, even though the Torah does not mention his name.: “Akiva, either way, you will be punished in the future. If you are correct, the Torah hid this information and you are revealing it. If you are wrong, you are libeling that tzadik” (Shabbos 96b).

Pirkei deRabbi Eliezer

This criticism can be leveled equally at Rabbi Akiva’s great rebbe, the tanna,Rabbi Eliezer ben Harkinus (no relation to Eliezer of Damascus, our protagonist). Although several passages of Gemara and numerous midrashim indicate that Eliezer was an incredible tzadik, we find other midrashim that provide a very different perspective about Eliezer, painting him in a very nasty way. The primary midrash source for this latter approach is Pirkei DeRabbi Eliezer (Chapter 15 ff.), which states that Eliezer was quite evil and was rewarded with much respect and access to wealth as Avraham’s right-hand man in order to receive recompense for his good deeds in this world, leaving his nefariousness deeds to be punished in the next!

Is this not strange? Where else do we find such a major dispute regarding whether a Tanach personality was righteous or evil? Even regarding Noach, about whom we find two disputing approaches in Chazal, all agree that he was a “great tzadik in his generations.” Since Noach performed some questionable acts, Chazal dispute whether to interpret the term, “in his generations” as a compliment, or as a limiting factor: considering the generations in which he lived, he was, indeed, relatively speaking, a great tzadik, but would not have been considered anything unusual had he lived during Avraham Avinu’s(and Eliezer’s) era, when there were such great tzadikim.

Regarding Eliezer, the fact is that no posuk describes him as a tzadik. He is clearly a very devoted servant, and the level of trust placed in him by Avraham implies that Eliezer is a very righteous individual. However, Pirkei deRabbi Eliezer implies that, although trusted by Avraham, Eliezer had major personal faults. We might want to compare him to Do’eig, Achitofel or Elisha ben Avuyah, all of whom were great Torah scholars, but whose shortcomings led them to become major sinners.

What difference?

Let me complete the second of our opening questions. What difference does it make to us whether Eliezer was a tzadik or a rosha? In other words, is there a practical difference whether one or the other of Chazal’s interpretations of Eliezer’s character is accepted?

The answer to this question is halachic. If Eliezer was a great tzadik and talmid chacham, as understood by the Gemara and Rashi, we can derive halacha from his actions. After all, studying the behavior and conversation of great people teaches the proper way to act and speak. To quote Chazal, “the conversation of the servants of our forefathers is more valued than the Torah of their descendants” (Bereishis Rabbah 24, 34).

On the other hand, when we study the behavior of Do’eig, Achitofel and Elisha ben Avuyah, we must proceed with caution. Although Chazal are replete with instances in which we derive insights into proper conduct from resha’im¸ we must be hesitant when we do so. Should we be analyzing Eliezer’s deeds to understand the proper way to act? Thus, whether we can learn from Eliezer’s actions depends on this dispute between the Gemara and Rabbi Eliezer ben Harkinus.

Eliezer’s approach to shidduchim

Upon arriving in the city of Nachor, the Torah describes Eliezer’s prayer to Hashem to send the chosen woman, in the following way: The lass should appear at the well. Eliezer will ask her to provide him with a small amount of water, and she will respond, “I will also provide water for your camels.” This is absolute proof that this girl is to be Yitzchak’s bride, without any other questions or research (Bereishis 24:14). The contemporary equivalent would be that, when looking for a shidduch for your son, obviously the best available bochur in his yeshiva, you appear at the local watering hole and ask one of the available young ladies for a drink. Should she offer refreshment to your thirsty, humped entourage, she is certainly the future mate to make your son happy and build a Torah house together. It is time to arrange the vort and coordinate schedules, so that his rosh yeshivah can be mesadar kiddushin.

This system certainly simplifies arrangements, saves a lot of time and spares discovering sordid details about others. So, perhaps it has much merit. However, halachically this is not the correct approach. It is our responsibility to research potential shidduchin very carefully.

What about nichush?

Furthermore, Chazal question whether Eliezer’s method is indeed permitted, as this might violate the Torah’s prohibition against nichush, sorcery! The Gemara (Chullin 95b), quoting the great amora, Rav, states that what was performed by Eliezer, the slave of Avraham, constituted nichush!

Let me explain:

In parshas Kedoshim (Vayikra 19:26) and parshas Shoftim (Devorim 18:10-11), the Torah forbids any form of nichush, practicing the use of omens. It is prohibited to employ methods that are outside Torah to determine whether to pursue or avoid a particular course of action. According to the Rambam (Moreh Nevuchim 3:37), these practices are forbidden because they are similar to idol worship. Our relationship with Hashem may not be diluted by placing confidence or decision-making in the hands of superstitions, or worse.

Despite the issue of nichush, many commentators discuss Eliezer’s actions, thereby implying that they consider Eliezer a knowledgeable tzadik worthy of emulation, whose actions serve as a basis to learn how one should act. How can this be?

One technical answer is that, perhaps, Eliezer did not feel that the prohibition against nichush applied before the Torah was given, or that it does not apply to non-Jews (see Sanhedrin 56b).

Genealogy

Aside from the problem of nichush, there is another concern about Eliezer’s actions. He had been instructed to choose a wife from Avraham’s kin, but not every resident of Nachor was related to Avraham. So, how could Eliezer make the decision contingent on whether the anticipated young lady happened to be in the right place, at the right time, and generously offered to provide water?

Tosafos suggests that Eliezer did not rely exclusively on Rivkah’s offering the water to propose the marriage, but first verified that she, indeed, held the correct pedigree (Chullin 95b s.v. Ke’eliezer).

Dispute regarding nichush

According to many rishonim (see Ra’avad Hilchos Avodas Kochavim 11:4, 5; Radak (Shmuel I 14:9), only practices founded on superstition, sorcery, idol worship or similar nefarious bases are prohibited because of nichush. Thus, according to the Ra’avad and the Radak, Eliezer’s condition did not violate the prohibition of nichush.

However, the Rambam does not accept this distinction, prohibiting using anything without a logical or halachic basis to make a decision or follow a plan of action (Hilchos Avodas Kochavim 11:5). The Rema (Yoreh Deah 179:4) cites both opinions, without reaching a clear conclusion, and then closes by saying that one who lives his life sincerely and is confident in Hashem’s ways will be surrounded by kindness, implying that it is better not to follow such signs.

Nevertheless, we can justify Eliezer’s actions, even according to the Rambam, based on a beraisa, quoted by the Gemara (Sanhedrin 65b-66a), that allows deciding what to do based on a logical reason for the planned course of action (see Ran ad loc.). In other words, to cancel travel plans today because it appears that it will rain is not a violation of nichush. All opinions agree that nichush does not prohibit undergoing a medical procedure that appears beneficial (Moreh Nevuchim; Meiri, Shabbos 67a), even if no one understands why it helps. Similarly, demonstrating chesed the way Eliezer asked is a good indication that the young lady has the qualities to be Yitzchak’s wife.

Conclusion

I quoted above a passage of Gemara that stated that the entire army that vanquished the four powerful kings led by Kedorla’omer consisted of two soldiers, Avraham and Eliezer. Although this passage is certainly intended to be a midrash and not to be taken literally, the concept the midrash is conveying is that, to Hashem, He Who wages all wars, there is no difference between an army of two (or one, for that matter) and an army of two million. If they have absolute trust in Hashem, He can have them win, even if they are two unequipped and untrained octogenarians, and if He is not interested in their success, two million highly trained Navy SEALS will suffer defeat.

The Talis Exchange and Other Lost Stories

Chazal teach us that in the merit of Avraham saying to the king of Sodom that he would not accept even a thread from him, his descendants received the mitzvah of tzitzis.

Question #1: THE TALIS EXCHANGE

Dovid asked me the following shaylah: “I put down my talis in shul and, upon returning, discovered that it had been replaced with a similar-looking talis. I left the talis undisturbed, and hung up a sign noting the exchange. Unfortunately, no one responded, and, indeed, the owner may not even realize that he has my talis. Should I take his talis home? May I use it, or must I purchase a new one and leave his until he claims it, which may never happen?”

Question #2: THE LAUNDRY EXCHANGE

A laundry returned the correct quantity of items that had been brought originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his laundry and was missing some items; however the laundry insisted that it had returned whatever was brought. Shimon subsequently discovered that Reuvein had one of Shimon’s missing sheets and he clearly identified his missing sheet. Reuvein claimed that the sheet was a replacement for his sheet that was lost and that he is therefore not required to return it. Must he return the sheet?

Question #3: THE WEDDING EXCHANGE

Someone went to a wedding wearing one coat and mistakenly returned home with a different one. May he use this coat and assume that the other party is agreeable to the exchange? Does this depend on which coat is more valuable?

Question #4: AN UMBRELLA ON THE SUBWAY

On the subway you see a frum, unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

SHO’EL SHELO MIDAAS

The concern in all these situations is that one is using someone else’s property without permission. This is called sho’el shelo midaas, borrowing without the owner’s knowledge, which is usually halachically equivalent to stealing(Bava Metzia 41a; 43b)! In general, one may not use an item until one receives permission from the owner.

CAN’T I JUST ACCEPT THE TRADE OF THE TWO ITEMS?

Since the loser is wearing my talis, why can’t I simply assume that we have traded taleisim; I’ll keep his talis and allow him to keep mine? (Although the correct Hebrew plural is taliyos or talisos, I will use the colloquial taleisim.)

Although Dovid may grant permission to the other person to use his talis,can he assume that he has permission to use the other person’s talis? Let us examine a relevant discussion:

EXCHANGED ITEMS AT THE TAILOR

Someone whose clothes were replaced with someone else’s at a tailor may use what he received until his garment is returned. However, if the exchange transpired at a shiva house or a simcha, he may not use the garment he received but must hold it until the owner claims his property. What is the difference between the two cases? Rav answered: “I was sitting with my uncle, and he explained to me, ‘Sometimes people tell the tailor to sell the item for them’” (Bava Basra 46a).

We see from this case that if I exchanged a coat with someone else at a simcha or at a shiva, I may not wear the coat,since I am “borrowing” it without permission. The fact that the other person is using my garment, knowingly or unknowingly, does not permit me to use his. I may have to purchase a replacement, even though a perfectly nice garment is sitting unused in my closet, since the garment is not mine.

However, if the exchange happened in a tailor shop, I may use the replacement.

WHAT IS THE DIFFERENCE BETWEEN A TAILOR AND A WEDDING?

Why is the tailor shop different? The Gemara presents a rather cryptic answer to this question: “Sometimes people tell the tailor to sell the item for them.” What does this mean?

The early poskim explain that when the exchange transpired in a repair shop, one may assume that the following situation occurred:

Someone brought a garment to the tailor, asking him to sell it for him. The tailor erred and sold your garment instead and then paid the money received (minus his sales commission) to the original owner of that garment. When you came to claim your garment, the tailor realized his error, and also realized that he must compensate you for your item, since he probably has no way to retrieve it. However, he had no cash available,so he gave you a replacement instead – the garment that he was supposed to sell (Tur and Sma, Choshen Mishpat 136:1). Since the tailor already paid the original owner for his garment, he now owns it and he is fully authorized to give it to you as a replacement for your lost garment. This case is referred to as nischalfu keilim beveis ha’uman (items that were exchanged in a craftsman’s shop).

The next passage in the Gemara’s discussion is now almost self-explanatory:

Rav Chiya the son of Rav Nachman explained that the ruling of nischalfu keilim beveis ha’uman applies only if the repairman himself gave you the different garment, but not if his wife or children gave them to you.

Obviously, if the tailor’s wife or child gave you the wrong garment, you cannot assume that this was because of the tailor’s earlier error. It is more likely that they simply mistakenly gave you the wrong garment, which needs to be returned.

Similarly, the following concluding passage of this discussion is clear.

Rav Chiya the son of Rav Nachman continued: The halacha of nischalfu keilim beveis ha’uman applies only if the repairman told you, “Here is a garment.” However if he said “Here is your garment,” we assume that he erred, since he is not giving you your garment.

If the tailor had sold your garment in error and is now sheepishly providing you with a replacement, he would not tell you, here is your garment. Therefore, if he says here is your garment, we assume he must have mistakenly given you the wrong garment, and you must return it.

We see clearly that the ruling of nischalfu keilim beveis ha’uman applies only when I can assume that a tailor or other repairman inadvertently sold or disposed of my item and can legitimately offer me the replacement. Otherwise the situation is comparable to the case of garments exchanged at a simcha, where one may not use the received garment without permission.

At this point we can analyze Question #2.

A laundry returned to Reuvein the same number of items he had brought originally; however, one sheet is not his. Shimon claims to be missing some items, which the laundry denies. Shimon proves that the sheet is his, yet Reuvein claims that the laundry gave it to him as a replacement for what they lost and that he is therefore not required to return it. Must he return the sheet?

Answer: Shimon did not give the sheet to the laundry to sell. Therefore, the laundry gave Shimon’s sheet to Reuven without authorization and he must return it to its rightful owner, even if Reuven has no other way of being compensated for his loss (Terumas Hadeshen #319; one of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!).

The reason for this is obvious: Laundries do not usually act as agents to sell people’s clothing, and in any case, Shimon clearly denies ever making any such arrangement.

SO, WHAT IS THE STATUS OF THE TALIS?

Let us return to our original question. Someone took Dovid’s talis and left behind a similar-looking one. The owner has not responded to any of his notices, and Dovid suspects that he does not even realize that an exchange transpired.

Based on the above discussion, it would seem that Dovid has no choice but to consider purchasing a new talis. However, there is another Gemara discussion that affects our case, so don’t run to the store just yet. Let us examine the following passage:

Shmuel said, “Someone who finds tefillin in the street should estimate their worth and may wear them himself” (Bava Metzia 29b). If the finder has no need for a pair of tefillin, he may sell them and put the money aside for the owner. The Rosh (Bava Metzia 2:16) rules that the finder may even use the money in the interim.

Shmuel’s statement presents some obvious questions:

His ruling seems to contradict the principle that borrowing an item without permission is tantamount to theft. Why can the finder wear (or sell) these tefillin? As we are all aware, one of the Torah’s mitzvos is to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4). How does the Gemara permit the tefillin finder to wear them and not return them to the owner? And even if we correctly assume that “estimating their worth” means that he is responsible to return the value of the tefillin to its owner if and when he locates him, why is this case different from the normal obligation of returning the actual lost item itself to its owner? Obviously, there must be something about tefillin that permits the finder to keep them and simply repay their estimated value.

Some poskim contend that this ruling applies only to a mitzvah object, where the owner wants someone else to use his tefillin rather than have them sit unused (Shach 267:16, in explanation of the Rambam, Hilchos Gezeilah 13:14). However, most authorities imply that this ruling also applies to non-mitzvah items, in cases where the owner is satisfied with simply receiving back their value (see Tur and Shulchan Aruch, Choshen Mishpat 267:21). The basis for this second opinion is the continuation of the Gemara’s discussion:

TEFILLIN VERSUS SEFORIM

The Gemara asks why someone finding tefillin may wear them, since this ruling appears to contradict a statement that someone who found books may not use them, but must hold them for the owner. Why are tefillin different from seforim? The Gemara answers that a person wants to receive back his own books, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have tremendous interest in seforim that are difficult to replace. From this one could infer that there is a difference between finding an item that the owner does not mind replacing and finding an item that he does not want to replace, and this would seem to have ramifications for someone who finds a talis, an umbrella, or some other easy to replace item.

Although this seems to be the obvious point of this Gemara, elsewhere the Gemara seems to rule otherwise. If someone found coins placed in a deliberate fashion, the finder may not spend this money and replace it with other coins, but must hold these very coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving back these specific coins, and would be very satisfied with receiving replacement money. Why is it not sufficient to simply return coins of the same value? We see that returning replacement value is not satisfactory, even when the owner does not care.

The answer is that in the case of lost tefillin, two factors must be met before one may use them. In addition to the point mentioned above, another consideration is that someone who finds tefillin must occasionally air them out and ensure that they are kept dry (Rosh, Bava Metzia 2:18). (When a person wears tefillin daily, he automatically airs them out at the same time, which benefits them.) Thus, the owner of the tefillin actually benefits more if the finder sets aside money, since the tefillin will become ruined if no one takes proper care of them. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.

We can therefore derive the following principles:

If taking care of a lost item requires some effort, and the owner does not care whether he receives back the original item, the finder may estimate the value of the lost item and plan to repay the owner this amount. Otherwise, the finder should hold the lost item and await the owner’s return.

Having established the rule, let us see which cases fit the rule and which do not. Clothing does not usually fit this rule, since people are interested in receiving back the same garment. A person is comfortable with his own clothes, and often purchasing something to one’s taste is not a simple matter. Therefore, someone finding a lost garment may not sell it and hold the money for the owner.

ARE UMBRELLAS AND TALEISIM LIKE TEFILLIN?

On the other hand, the average person does not develop a personal attachment to his umbrella and is perfectly satisfied to have a usable replacement umbrella. Similarly, a man is usually not that concerned about his specific talis and is satisfied with a replacement. In addition, both of these items are comparable to tefillin and not to coins, since if they are never used they become musty. (Normal use of an umbrella airs it out.) Therefore, someone who locates a lost umbrella may use it after estimating its value.

We are now prepared to answer Question #1 and also Question #4. I will answer Question #4 first: On the subway you see a frum but unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

Clearly, she will despair of recovering her umbrella as soon as she realizes her loss (yi’ush), and if pick it up after she realizes that she left it on the subway, you are not responsible to return it or its value. Nevertheless, in this subway scenario, you will be picking up the umbrella before she realizes her loss.  In that case,  the umbrella is still the property of the person who lost it and someone picking it up is responsible to return it.

However, a person is usually not concerned about owning a specific umbrella, but is satisfied with money to purchase a replacement. (Indeed, if the umbrella that was lost appears to be a designer umbrella, the halacha will be different.) Therefore, even though the owner still owned the umbrella when you found it, you may claim the umbrella as your own, and simply make a mental note how much it is worth. Should you ever meet its owner and she proves that the umbrella was hers, you must compensate her.

And now our analysis of our opening question, The Talis Exchange

Dovid had put down his talis in shul, and it was replaced by a similar-looking talis. His attempts to alert the owner were unsuccessful, and, indeed, the owner may not even notice the exchange. May Dovid use the other talis or must he purchase a new one?

I believe that most men do not feel attached to their particular taleisim, and this case is therefore comparable to the tefillin case of the Gemara. Assuming this to be true, someone who finds a lost talis may estimate its value and then either wear it or sell it. Either way, he should record the value of the talis and intend to return it to the owner, should the owner ever return for it. When I first published this article, I received several responses disagreeing with me, contending that most people are more possessive of their taleisim than I felt.

PECULIARITIES

The careful reader may have noted that our discussion is heading to an unusual conclusion.Although the Gemara’s rules that the owner is less concerned about retrieving his tefillin than retrieving his seforim, today the opposite is generally true – an owner is usually not concerned about receiving backthe same sefer since one can usually purchase it again in a bookstore. (However, the Gemara’s halacha would remain true if he had written notes in the sefer, or it is a special edition that the owner would not be able to readily replace.)

On the other hand, many people own hand-picked tefillin and want their specific pair back (Minchas Elazar 4:9; see Pischei Choshen, Aveidah 6:ftn23). They may have purchased tefillin whose parshi’os were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. After analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides that the original owner gets his tefillin back. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with society.

Returning lost items is a beautiful and important mitzvah. As we now see, the details of observing this mitzvah are often very complicated – and can vary from item to item.

The Fateful U-Turn

ACT I – THE FATEFUL U-TURN

Location: The highway

Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous, since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.

Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.

The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.

To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that, since he was leaving for a week, Reuven could borrow the car while he was gone.

After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there was no insurance coverage for the damage done to either vehicle.

Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he borrowed it.

Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.

Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.

ACT II – THE COURTROOM

Location: The offices of the beis din

On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages, since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.

Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:

1. First, Reuven should be liable as the borrower of the car, even if the damage was not his responsibility.

2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.

Let us examine the validity of each claim separately, and then we will see what Reuven counters.

SHO’EIL

A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car, since he borrowed it.

REUVEN’S DEFENSE

Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that as a socheir I am not responsible for the damages sustained, as I will explain.”

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as explained below.

WAS REUVEN A SHO’EIL OR A SOCHEIR?

In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan, without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control. Put in other terms, a lender who receives no benefits has a right to assume that his item, or its value, is returned to him.

However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo, and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t Haran #20).

BUT WAS THIS A CASE OF NEGLIGENCE?

Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir, because the damage was caused by negligence!”

Furthermore, you are a sho’eil because giving me a ride to the airport was not an exchange for using the car; it was a chesed that you did for me.

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower with regard to assumption of responsibility.

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

Reuven claims he would never have driven the car, had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value, and he is not liable for the damage. Does this defense have any merit?

The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually was. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car, because he never assumed responsibility for its value.

BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?

Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir, because he never assumed any responsibility. The first claim seems like an unnecessary step in his defense — let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.

The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all damages, even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances).On the other hand, a renter’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A sho’eil is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility, or that he was unaware of the liability, may not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.

Thus, Reuven claims that he is not responsible as the borrower of the car for the following reasoning:

1)      He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”

2)      As a socheir, he can claim that he never accepted responsibility for the value of the car, because he assumed that insurance was covering the financial liability.

WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?

Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident, in order to collect the damages from Reuven?

First, we must clarify two shaylos:

1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?

2. When two parties are involved in a collision, how do we assign financial responsibility?

The following incident that happened over seven hundred years ago resolves one of our questions.

ACT III – SOME HORSEPLAY

Location: Thirteenth century Germany

The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:

During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages, but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalty?

The horse rider refused to pay, contending that he was exempt from damages, since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.

The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider, himself, is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalty that the groom incurred.)

When two cars collide, who is responsible for the damage?

Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.

For this we will have to refer to an older discussion that traces back to the time of the Gemara.

ACT IV – A COLLISION

Location: Bavel, seventeen hundred years ago

The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is held responsible to pay for the damages?

We will simplify a very complicated discussion by providing some general rules that apply to our case:

If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party acting irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable, since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon, in order to complete his Shabbos preparations. Such running is not considered irresponsible.)

If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus, if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries, and Yehudah for Levi’s.

Tosafos (Bava Kamma s.v. shenayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally, he must pay, even if the other party was negligent.

How do we pasken?

The Shulchan Aruch (Choshen Mishpat 378:7) rules like Rashi,whereas the Rema (421:8) rules like Tosafos.

Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving, since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.

According to Tosafos, Reuven is claiming that both parties contributed to the damage and that, therefore, he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages caused to the car that he was driving.

This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.

ACT V – EPILOGUE

Reuven was understandably disappointed with the beis din’s decision. However, as a G-d-fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved, and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continue his driving career with no further incidents or accidents.

Hunting for Meat

Parshas Re’eih includes the commandment that instructs us how to prepare our meat for our table (Devorim 12:15).

Question #1:

Sheis, the son of Adom Harishon, was traveling one day and realized that he had not packed enough peanut butter sandwiches for the trip. Now hungry, he witnessed a travel accident, which resulted in an animal being killed. Was he permitted to cook the carcass for lunch?

Question #2:

Sheis’s descendant, Linda, lives in the modern era and is Jewish. While traveling in an unfamiliar area, she hunts for kosher meat, discovering some with an unfamiliar supervision, and calls her rabbi to ask whether he recommends it. What factors does he consider in advising her whether to use this product?

Question #3:

In a previous position, I was responsible for researching sources of meat that our local Vaad HaKashrus would accept. I traveled to many cities and visited many meat packing facilities. People have often asked why, sometimes, my hunt resulted in a new acceptable source, and why sometimes it did not. What was I looking for?

Before answering these questions, we need to understand what are the Torah’s requirements for allowable meat.

Upon Noach’s emerging from the teivah (the ark), Hashem speaks to Noach, notifying him that he and his descendants may now eat meat for the very first time. Prior to this time, no one had ever been permitted to sink his teeth into a steak or even a schnitzel (Sanhedrin 59b, based on Bereishis 1:29-30, 9:3; as interpreted by Rambam, Hilchos Melachim 9:1). In actuality, not all authorities agree that Adam and his pre-mabul descendants were required to be vegetarian – some maintain that they were permitted to eat the meat of animals that had already died, and were forbidden only to kill animals for meat (Rashi, Bereishis 1:29and Sanhedrin 57a s.v. limishri basar; Tosafos, Sanhedrin 56b s.v. achal). According to this last opinion, pre-Noach mankind may have eaten sushi, steak or schnitzel, provided that they did not take the animal’s life.

Thus, whether Sheis could barbecue the discovered road kill (Question #1 above) depends upon whether he held like Rashi, in which case he could, or like the Rambam, in which case he could not. According to the Rambam, he was restricted to a vegetarian diet, which included the responsibility to check that his veggies were insect-free. Presumably, he called the local Vaad HaKashrus to determine how to check each type of vegetable. I wonder what he did when he wanted to eat Brussels sprouts!

However, when Noach emerged from the teivah, he and his descendents were permitted to give up their vegetarian lifestyle, provided that they ate no meat that had been removed from an animal while it was still alive (eiver min hachai). Just think —  had Sheis lived after the time of Noach, he could have included some tuna sandwiches in his lunchbox or picked up a salami at the local grocery, instead of going hungry!

When the Torah was given, it both limited the species that a Jew may eat and created many other regulations, including that kosher meat and poultry must be slaughtered in the halachically-approved way (shechitah), and may be eaten only if they are without certain defects that render them tereifah. Even after ascertaining that the animal, itself, may be eaten, one must still remove the blood, certain fats called cheilev, and the sciatic nerve (the gid hanasheh). These last two prohibitions do not apply to fowl.

In the contemporary world, guaranteeing that one’s meat is appropriate for the Jewish table involves several trained and G-d-fearing people, including shochatim, bod’kim, menakerim, mashgichim, and knowledgeable rabbonim to oversee the entire process.

THE SHOCHEIT’S JOB

Aside from the shocheit’s obvious responsibility to slaughter the animal the way Hashem commanded, he must also fulfill another very important task: following the slaughtering, he must verify that he performed the shechitah correctly. This is a vitally important step; without this inspection, the animal or bird must be considered non-kosher – it will be acceptable for the table of Bnei Noach, but not for Klal Yisroel.

Next, the animal or bird is examined to ensure that it is not tereifah. Although common use of the word “treif” means something that is non-kosher, for any reason whatsoever, the technical meaning of the word refers to an animal with a physical defect that renders it non-kosher, even if it was the beneficiary of a proper shechitah.

THE BODEIK

In a meat packing plant (beef, veal or lamb), the individual accountable to check for these defects is called a bodeik (pl. bod’kim). Most bod’kim are trained shochatim, and, indeed, in most plants, the bod’kim and shochatim rotate their tasks, thus making it easier for them to be as attentive as the post requires. As a result, a person licensed both as a shocheit and as a bodeik is usually called a shocheit, although, technically, he should be called a shocheit ubodeik, to truly reflect the extent of his training.

THE SECOND BODEIK

The responsibility to check for tereifos is divided between two bod’kim. The first, the bodeik penim, checks the lungs in situ, which is the only way one can properly check that the lungs do not adhere to the ribs, to the membrane surrounding the heart (the pericardium), or to themselves in an improper way, all of which render the animal non-kosher. This checking is performed completely based on feel. The bodeik gently inserts his hand, and runs his fingers carefully over all eight sections of the lung, to see if he feels any adhesion between the lung and one of the other areas.

The second bodeik, the bodeik chutz, rechecks the lungs and makes a cursory check of other organs, upon their removal from the carcass, particularly the stomachs and intestines, for swallowed nails and for various imperfections that render the animal non-kosher.

After the two bod’kim are satisfied that the animal is kosher, the second bodeik or a mashgiach tags the different parts of the animal as kosher with lead or plastic seals. Longstanding practice is that, in addition, the bodeik or a mashgiach makes small slits between the ribs that identify the day and parsha of the week, to mark the piece as kosher. A mark made when the meat is this fresh appears completely different from one made even a few hours later, making it difficult to counterfeit. Of course, this mark is not, alone, used to verify that the meat is kosher, but it is an essential crosscheck, since the old-styled tags can be tampered with.

The modern kosher poultry plant is organized slightly differently: The shochatim perform shechitah only, whereas the bedikah inspection is performed by mashgichim trained to notice abnormalities. If they notice any, they remove the bird from the production line; a rav or bodeik then rules whether these birds are kosher.

For both animals and birds, one needs to check only for commonly occurring tereifos, but not for uncommon problems. For example, the established halachic practice of over a thousand years is to check an animal’s lungs, because of their high rate of tereifos, and today it is common practice in Israel to check legs. Animal lungs frequently have adhesions called sirchos, which render them non-kosher (Chullin 46b), although Ashkenazic custom is that easily removed adhesions on mature cattle do not render them treif (Rosh, Chullin 3:14; Rema, Yoreh Deah 39:13). An animal without any sircha adhesions is called glatt kosher, meaning that its lung is completely smooth – that is, without any adhesions, even of the easily removable variety.

The rav hamachishir’s responsibilities include deciding which problems are prevalent enough to require scrutiny and what is considered an adequate method of inspection.

Depending on the factory, the next steps in the preparation of beef, veal or lamb are occasionally performed in the same facility where the shechitah was performed, or alternatively, they are performed at the butcher shop.

TRABERING

Prior to soaking and salting meat to remove the blood, certain non-kosher parts of the animal, including the gid hanasheh (the sciatic nerve), non-kosher fats called “cheilev,” and certain large blood vessels, must be removed (Yoreh Deah 65:1). The Hebrew word for this process is “nikur,” excising, and the artisan who possesses the skill to properly perform it is called a menakeir (pl. menak’rim). The Yiddish word for this process is traberen,which derives from tarba, the Aramaic word for cheilev, the non-kosher fat. This step is omitted in the production of poultry, since it is exempt from the prohibitions of gid hanasheh and cheilev, and its blood vessels are small enough that it is sufficient to puncture them prior to the soaking and salting procedures.

Early in its butchering, a side of beef (which is half its carcass) is divided into its forequarter and hindquarter. Since the gid hanasheh and most of the cheilev are located in the hindquarter, trabering it is a tedious process that requires a highly skilled menakeir. (On RabbiKaganoff.com, there is an article on the history and halachic issues germane to this practice.) The forequarters must still be trabered prior to soaking and salting, to remove blood vessels and some fat (Rema, Yoreh Deah 64:1; Pischei Teshuvah 64:3). Although trabering is a relatively easy skill to learn, Linda’s rabbi might need to check whether the hechsher can be trusted that this was done properly, as the following story indicates.

I once investigated the kashrus of a certain well-known resort hotel, one not usually frequented by frum clientele. I called the hotel and asked who provided their hechsher, and was soon on the telephone with both the resident mashgiach and the rav hamachshir.

I began by introducing myself and the reason for my phone call, and then asked about the sources of the meat used in the hotel. In the course of the conversation, it became evident that neither the rabbi nor the mashgiach knew the slightest thing about traberen, although they were officially overseeing a staff of in-house butchers, none of whom was an observant Jew. I realized that the rather poor kashrus reputation of this establishment was, indeed, well deserved. The rabbi overseeing the hechsher, himself, did not know trabering, nor did he have any halachically reliable supervisor. What was he overseeing?

SOAKING AND SALTING

Returning to our brief overview of the proper preparations for kosher meat:  After the meat has been properly trabered, it is ready to be soaked and salted to remove its blood. In earlier generations, this process, usually called kashering meat, was performed exclusively at home, but today, common practice is that this is performed either by the butcher or at the meat packer. Almost all kosher poultry operations today soak and salt the meat immediately after shechitah, and it is becoming increasingly more common in beef operations.

To kasher meat, it should be rinsed well, soaked in water for half an hour, drained, salted for an hour, and then rinsed three times (Rema, Yoreh Deah 69:1, 5, 7). The halacha requires that the meat be covered with salt on all exposed surfaces (Yoreh Deah 69:4). Most packing plants do this job appropriately, although I have seen places where the salting was inadequate; entire areas of the meat were not salted. This is, probably, simple negligence; although when I called this problem to the attention of the mashgiach, he insisted that it was performed adequately, notwithstanding my observing the contrary. Needless to say, I did not approve this source.

WASHED MEAT

The Geonim instituted a requirement that meat be soaked and salted within 72 hours of its slaughter (Yoreh Deah 69:12). This is because of concern that once 72 hours have passed, the blood becomes hardened inside the meat, and salting no longer removes it. If more than 72 hours passed without the meat being salted, the Geonim ruled that if the meat is broiled, it may be eaten, since this process will still remove the blood, even though salting will not (Yoreh Deah 69:12).

A question that developed with time was whether wetting the meat prevents the blood from hardening inside. Some early authorities permitted soaking meat to extend the 72-hour period (Shach 69:53). However, this leniency often led to highly liberal interpretations. I have seen butchers take a damp rag and wipe the outside of the meat and considered it washed. Thus, there are two different reasons why most reliable kashrus operations do not allow the use of “washed meat,” either because they do not accept this lenience, altogether, or because of concern that once one accepts hosed meat, it becomes difficult to control what type of washing is acceptable.

THE RAV HAMACHSHIR

Thus far, I have described the tremendous responsibilities of most of the staff necessary to guarantee that the meat is of the highest kashrus standards. One person that I have not adequately discussed is the rav hamachshir, the supervising rabbi, who has the final say on the kashrus standards that the meat packer and butcher follow. Although a rav overseeing meat kashrus does not necessarily have to be a shocheit or trained menakeir himself, he certainly must be proficient in all of these areas, both in terms of thorough knowledge of halacha and in terms of practical experience. For most of Jewish history, the most basic requirement of every rav demanded that he be proficient in all the halachos of kosher meat production. As the local rav, his responsibility included all shechitah and bedikah in his town.

However, in the contemporary world of mass production and shipping, the local shul rav is rarely involved in the details of shechitah, and often has limited experience and training in these areas. Depending on the semicha program he attended, he may not have been required to study the laws of shechitah and tereifos. Thus, what was once the province of every rav has now become a specialty area, and, sometimes, rabbonim involved in the giving of meat hechsherim lack the proper training.

I was once given a tour of a meat packing plant by the supervising rabbi of the plant. During the course of the tour, I became painfully aware of the rabbi’s incompetence in this area of kashrus. For example, he was clearly unaware of how to check shechitah knives properly, certainly a basic skill necessary to oversee this type of hechsher. Would you approve this meat supplier for your local Vaad HaKashrus?

At this point, I want to address the third question I raised above: Sometimes, my visit to a meat packer resulted in a new, acceptable source, and sometimes it did not. What was I looking for, and why would I disapprove a source that a different rav was approving?

The answers to these questions are sometimes subjective, but I will provide you with some observations of mine.

IS THE SYSTEM WORKABLE?

There are many subtle and not-so-subtle observations that a rav makes when examining a meat packer. I could not possibly list in one article all the types of problems I have seen, but I will mention certain specific concerns to which I would always be attentive.

Is the production line too quick for the shocheit or mashgiach to do his job properly? Are the shochatim or mashgichim expected to perform their job in an unrealistic manner, either because of a shortage of trained manpower or because of the speed or organization of the production line?

QUALITY OF PERSONNEL

Are the shochatim knowledgeable? Do they appear to be G-d fearing individuals? Although it is impossible to know whether someone is, indeed, a yarei shamayim, it is unfortunately often very obvious that he is not. It can happen that one rav has questions about the staff, and for this reason, he does not approve a source of supply.

I will give you an example of this. While visiting a plant to determine whether we should allow this shechitah, we heard a conversation in which one of the shochatim showed a shortcoming in tzeniyus within his family. Although one could point to a specific law that disqualifies him as a shocheit, I, personally, was uncomfortable with entrusting him with decisions that would affect what I eat. After discussion with the other rabbonim in our community, we decided not to accept meat from this shechitah.

Does this mean that we considered this meat non-kosher? G-d forbid. It simply means that we were uncomfortable allowing it, and decided that we have that responsibility as rabbonim of our community.

Thus, it could indeed happen that what one rav considers acceptable, another rav feels is not. The differences may be based on the interpretation of halacha, or they may result from a rav’s inclination as to how a plant should be run.

CONCLUSION

Based on the above information, we can better understand many aspects of the preparation of kosher meat and why it is important to use only meat that has a proper hechsher. We can also gain a greater appreciation of how hard rabbonim and shochatim work to maintain a high kashrus standard. Now that we recognize the complexity involved in maintaining kosher meat standards, we should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

Honor the Elderly!

In the aseres hadibros, honoring parents features significantly, thus, we will discuss:

Question #1: Respect your elders?!

“Am I required to stand up anytime I see a senior citizen walking down the street?”

Question #2: Age before wisdom?!

“I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

Question #3: Elder older?

“Does one older person need to stand up for another older person?”

Introduction

In parshas Kedoshim, the Torah teaches that there is a mitzvah to stand up before an older person and to treat a “zakein” with respect. The words of the posuk are: Mipnei seivah takum vehadarta penei zakein, “you should stand up for an older person and treat an ‘elder’ with respect” (Vayikra 19:32).

To begin with, we will raise several additional questions: How old does the person need to be to qualify as being “older”? Does it make a difference if it is an older man or an older woman? For how long must I remain standing? Is there any difference between someone who is “older,” in lashon kodesh, seivah, and someone who is an “elder,” which is the way I translated the word zakein? Is a demonstration of respect required, regardless of how religiously observant the older person is?

Elder or older?

I was very deliberate to translate the word zakein as “elder.” Indeed, the lashon kodesh word zakein, and the English word elder, carry the same two different meanings. The word zakein can mean an older person, but it can also mean a scholar, or someone who is respected for his sage advice and leadership qualities. Both meanings are similarly included in the English word “elder,” but not necessarily in the word “older.” Thus, the expression, “respect your elders,” does not have to refer to someone older than you are, since there can be a young elder, but it is difficult to have a young older.

The Gemara (Kiddushin 32b) presents a three-way dispute as to what type of older person, or “zakein,” is included in the mitzvah. According to the tanna kamma, the mitzvah applies only to someone who is both a Torah scholar and elderly. In his opinion, there is no requirement to stand up for a profound Torah scholar who is young. Rabbi Yosi Hagelili disagrees, contending that there is a mitzvah to rise and show respect both to an older person who is not a profound scholar, as long as he knows some Torah, and to a Torah scholar, even if he is young. A third tanna, Isi ben Yehudah, rules that there is a requirement to stand up for any Torah scholar and for an older person, provided the older person is basically Torah observant. (This reflects the opinion of Rabbeinu Tam, which is the approach accepted by the halachic authorities. According to Rashi, Isi ben Yehudah requires standing up for an older person, even if he is willingly non-observant, and even if he is a rosho.)

The Gemara (Kiddushin 32b-33a) concludes that the halacha follows the third tanna, Isi ben Yehudah, which is accepted by the halachic authorities. Thus, there is a requirement to stand up for an older person, if he is halachically observant, even if he is not a scholar.

The Rambam’s conclusion is that a young talmid chochom should demonstrate honor to someone elderly, even if the older person is not a talmid chochom. This means that he is required to rise slightly to demonstrate honor, but he is not required to stand up fully (Hilchos Talmud Torah 6:9, as explained by Tur Yoreh Deah 244 and later authorities). The poskim refer to this demonstration of honor as hiddur.

There is a minority opinion that no one is required to stand up fully before an older person who is not a Torah scholar, and that it is sufficient to rise slightly (hiddur), as a show of honor (Shu”t Binyamin Ze’ev #243; see Aruch Hashulchan, Yoreh Deah 244:10). However, the Tur (Yoreh Deah 244) and most later authorities do not accept this approach. They conclude that it is a mitzvas aseih min haTorah for anyone but a talmid chochom to stand up for an older person.

Why is a talmid chochom exempt?

This sounds strange! Where else do we have a mitzvah that applies to everyone but a talmid chochom? The answer is that the Torah’s mitzvah is to show respect to Torah scholars and to elderly people who are Torah observant. Of the two categories, a Torah scholar deserves greater respect. If a talmid chochom were obligated to stand up for a non-educated elderly person, this would mean that the Torah is respecting age before wisdom. In fact, the Torah respects Torah wisdom before age.

Nevertheless, the “young” talmid chochom should rise slightly to demonstrate his respect for the older person. Since rising slightly, without standing up completely, is not a tircha, this is not considered showing disrespect to the Torah that the young talmid chochom represents.

Age before wisdom?!

At this point, let us address the second of our opening questions: “I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

In other words, is there a requirement for the rebbi to stand up for his talmid who qualifies as a seivah? This question is discussed by several acharonim. The work She’eiris Yaakov,by Rav Yisroel Yaakov Algazi, is quoted as ruling that the rebbi is required to stand up for his talmid, the seivah. However, the commentary Leiv Meivin, by Rav Bechor Yitzchak Navardo, a nineteenth-century, Turkish posek, proves that the rebbi is required to stand up for his talmid only when the seivah himself is a talmid chochom and only when the rebbi is not obviously a much greater scholar than the seivah (Hilchos Talmud Torah 6:9). In other words, the only time a rebbi is required to demonstrate honor to an older person who is his talmid is when they are both talmidei chochomim of approximately similar stature, such that the younger talmid chochom is not obviously a much greater scholar than the older one. Thus, whether our daf yomi maggid shiur is required to stand up for the golden-aged attendees of his shiur is a dispute between the She’eiris Yaakov and the Leiv Meivin.

An older woman

Is there a mitzvah to stand up for an older woman?

The Sefer Chassidim (#578) rules that there is. Presumably, he is referring to a woman who is halachically observant, even if she is not very knowledgeable about halacha. There are halachic authorities who may disagree with the ruling of the Sefer Chassidim (see Halachos Ketanos 1:154; Shu”t Beis Yehudah, Yoreh Deah #28; Birkei Yosef, Choshen Mishpat 17:5; Bris Olam #578).

Two elderlies

Is an elderly person required to rise for another elderly person?

The Tur suggests that two talmidei chachomim or two elderly people should show respect (hiddur) for one another, although they are not required to stand up fully. This approach is codified by the Shulchan Aruch (Yoreh Deah 244:8). Some authorities explain that this is only when the two are of approximately equal stature as talmidei chachomim. However, if one of the talmidei chachomim is a greater talmid chochom than the other, the “lesser” talmid chochom is required to stand up for his more learned colleague (Leiv Meivin).

How old?

For how old a person are you required to stand up?

In the context of this mitzvah, the halachic authorities mention what appear to be three different ages.

1. The Rambam (Hilchos Talmud Torah 6:9) says that the mitzvah applies to someone “pronouncedly old,” which does not appear to have an obvious, objective criterion.

2. Based on the words of the Mishnah in Pirkei Avos (end of Chapter 5), ben shiv’im le’seivah, the Tur and the Shulchan Aruch rule that these laws apply to a person of the age of 70.

3. The Arizal is quoted as being strict to observe this mitzvah for people who have reached the age of 60 (Birkei Yosef, Yoreh Deah 244:4).

However, the Tur explains that the Rambam’s term “pronouncedly old” means 70, and that he is not disputing the Rambam in this matter.

In addition, there are various interpretations why the Arizal applied this mitzvah to someone who achieved the age of 60. Most conclude that the Arizal agrees with the ruling of the Shulchan Aruch, but that he had a personal chumrah, which was not halachically required, to stand up for a person once the honoree turned 60. Therefore, most rule that even those who follow kabbalistic practices are required to rise only for someone who is 70 years old (Birkei Yosef, Yoreh Deah 244:1; Leiv Meivin).

The halachic conclusion follows the opinion of the Tur and the Shulchan Aruch, ruling that the requirement to stand up for an older person applies only when the older person is at least 70 years old. This halacha holds true today, notwithstanding that 70 is no longer considered advanced in age.

An older person may be mocheil on his honor, and someone who knows that a particular person really does not want people to stand up for him should follow the older person’s wishes. Disregarding his personal desire is not demonstrating respect.

No respect

There is no requirement to rise and show respect when you are in a place where demonstrating respect is inappropriate, such as a bathhouse or bathroom.

When do you stand?

The requirement to stand up for a talmid chochom or an older person applies only when he is within four amos, approximately seven feet, of where you are. There are exceptions to this rule. There is a requirement to stand up for the person who taught you most of the Torah that you know, called your rebbi muvhak. In this case, you are required to stand up once your see the rebbi walking by, even at a distance (Aruch Hashulchan, Yoreh Deah 244:13).

Why four amos?

If you stand up when the talmid chochom or the older person is within your four amos, it is apparent that the reason you stood up is to honor him.

Don’t lose work time

There is an interesting halachic ruling, that there is no requirement to rise and show respect when a person will lose work time as a result. Therefore, a self-employed person is not required to stand up, should he be working when an elderly person comes by, and a worker in the employ of someone else is not permitted to rise while he is working, since he is taking away from the time he owes his employer. In other words, an employee is not permitted to be machmir and stand up when it costs money to a third party. Although one can argue that, in today’s business environment which accepts reasonable coffee breaks and other occasional, brief interruptions, it is permitted for an employee to stand up to show respect for a talmid chochom, we learn a very important lesson how halacha views the responsibility of an employee to his employer. This discussion will be left for a different, future article.

Standing up while learning Torah

The halacha is that someone in the middle of studying Torah is required to stand up for a talmid chochom or for an elderly person (when the halacha requires, as explained above). This is because of a general rule that performing mitzvos of the Torah pushes aside studying Torah.

Transported

What is the halacha, if the elderly person is being carried or wheeled in a wheelchair? Is there still a responsibility to rise when he passes within four amos? The answer is that there is a responsibility to rise when the elderly person passes by, regardless as to whether he is walking or being transported (see Kiddushin 33b). Therefore, it is required to stand up when an older person passes you while he is being pushed in a wheelchair.

As I mentioned above, you are required to stand up for an elderly person, once he is within four amos of where you are. There is a dispute among authorities whether you may sit down as soon as the scholar, or elderly person, passes by, or whether you should wait to sit down until he has passed beyond your four amos (Birkei Yosef, Yoreh Deah 244:12; Aruch Hashulchan, Yoreh Deah 244:13).

At this point, we can address our opening question:

“Am I required to stand up anytime I see a senior citizen walking down the street?”

The answer is that if he is over seventy years old (or appears to be), observes halacha, and you are not busy earning a living, you are required to stand up for him, once he is within your four amos.

In shul or while davening?

Is there a mitzvah to stand up for a talmid chochom or an elderly person when you are in the middle of davening? There is an authority who contends that since you are in the middle of showing respect to Hashem, you should not, then, show respect for a human, who is, himself, required to show respect to Hashem (quoted by Birkei Yosef, Yoreh Deah 244:1). However, the other halachic authorities disagree, contending that fulfilling Hashem’s mitzvah is showing respect to Hashem, and, therefore, should be observed while you are davening (see Birkei Yosef ad locum and Shu”t Radbaz that he quotes).

Your whole house

The Birkei Yosef raises the following question: In general, halacha considers your entire house to be one area of four amos. This has many halachic ramifications. For example, upon awaking in the morning most people wash their hands somewhere in the house, without being careful that they walk less than four amos before doing so.

The question he raises is whether we consider the entire house to be four amos germane to standing up for an older person. If we do, that would mean that whenever you are indoors and you see an older person walking around or being transported in the same house, you are required to remain standing up for him until he reaches his destination, even if he never comes within your four amos!

The halachic authorities conclude that there is no difference between being inside or being outside – in either instance, you are not required to stand until the older person is within your four amos. This is because the point of four amos germane to this mitzvah is that a greater distance away is not apparent that you are standing to demonstrate honor. This is true whether you are indoors or outdoors, and, therefore, there is no requirement to stand up indoors for an older person until he is within your four amos (Birkei Yosef, Yoreh Deah 244:5).

Discordant scholar

The Aruch Hashulchan (Yoreh Deah 244:13) rules that there is no requirement to stand up to show respect for a Torah scholar who creates disputes that are not for the sake of Heaven. This ruling would also apply to an elderly person who creates disputes that are not lesheim shamayim. Even if he meets the age requirement and is observant, if he is a baal machlokess, there is no mitzvah to rise for him.

Can’t see

Does the mitzvah to stand up for a talmid chochom or an elderly person apply when the honoree will be unaware that you did so, such as, if he cannot see? The She’eilos Uteshuvos Halachos Ketanos (1:154) rules that you are not required to stand up for an older person who cannot see that you did so (quoted by Shearim Hametzuyanim Behalacha 144:5). However, many other authorities dispute this conclusion (Birkei Yosef, Yoreh Deah 244:2).

Conclusion

When the posuk (Bereishis 24:1) mentions that Avraham Avinu got older, it uses the expression, ba bayamim, “he came with his days,” the first time this expression occurs in Chumash, even though many people had lived much longer than Avraham. The Gemara explains that this was the first instance of a person looking like an old man. Most people are sensitive about looking older, but the Midrash writes that Avraham Avinu asked to look elderly, so that people would know to treat him with respect! As the Gemara expresses it, “Until the time of Avraham, there was no concept in the world of people looking old. Someone who wanted to talk to Avraham, would (by mistake) go to Yitzchok, since they looked so similar, and vice versa. Avraham then prayed to Hashem, and the concept of appearing elderly began for the first time in history” (Bava Metzia 87a). The Bereishis Rabbah adds, “Avraham requested to look old. He said to Hashem, ‘Creator of all worlds, a man and his son can arrive in a place, and no one knows which of them to honor. If you crown him with the appearance of being elderly, people know whom to honor!’ Hashem answered him. ‘You requested it; it will begin with you.’ From the beginning of the Torah, until Avraham, there is no mention of anyone getting old” (Bereishis Rabbah 65:9).

Avraham Avinu’s outlook should serve as a wise counterbalance to modern society’s adulation and adoration of youth. This approach makes aging something to dread, rather than something deserving of respect. Instead, Avraham Avinu referred to signs of advanced age as a well-earned “crown.”

My Vows I Shall Fulfill #2

Question #1: Can performing a mitzvah be a liability?

Question #2: What is hataras nedarim?

Question #3: How does Kol Nidrei work?

Question #4:

Yankel asked me the following question: “When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Answer:

This week we will continue last week’s article on the topic of vows, oaths, and pledges. As we mentioned there, someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, he now has a Torah obligation to observe something that he is otherwise not required to do. We also discovered that, for reasons discussed in last week’s article, one should be careful not to make vows or pledges. Here is a review of the six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something:

(1) Nedarimvows

(2) Shevuosoaths

(3) Kabbalas mitzvah, declaring that one will perform a good deed

(4) Pledges to tzedakah, intending to donate charity

(5) Stringencies – performing a halachic chumra

(6) Doing something three times

The details of how these various activities become halachic responsibilities vary from category to category, and the outline of these rules was discussed in last week’s article. There we were taught that to avoid creating these commitments, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation. Similarly, someone who begins practicing a halachic hiddur should say, or at least think, that he is not accepting it as an obligation.

In addition, we presented last week how to release ourselves from vows and pledges via aprocess called hataras nedarim, which removes the continuing obligation to fulfill the vow. We noted that someone who violated his vow prior to performing hataras nedarim has sinned and is required to perform teshuvah for his or her infraction. In the case of a pledge to tzedakah¸ there is an additional requirement to pay it as soon as possible; otherwise, someone might violate the prohibition of bal te’acheir leshalmo – “Do not delay paying it” (Devarim 23:22).

If one contemplates making a vow or an oath, at what point has an oath been created? In most instances, thinking about making an oath or vow, or even deciding to do so without expressing it, does not create an oath. The vow or oath is created only by enunciating it.

If someone states the words of an oath or vow, but has no intention to accept an obligation upon himself, no oath or vow has been created. This is referred to by the Gemara as piv velibo shavim – his mouth and his heart are equal. In other words, his intent and his statement are both required in order to create an oath or vow. If he did not intend to create an oath or vow, the words alone do not create one because libo, his heart, meaning, his intention, was not to make an oath or vow.

What is the halacha if he wanted to make an oath or vow and began expressing it, but said something that is not a correct formula for either an oath or a vow? The halacha is that there are times when this is not a valid oath or vow, because what he said is insufficient to qualify, and there are other times when it is valid. Although the details are more complex than we will deal with in this article, we will discuss two instances in which the oath or vow is valid and must be kept.

  1. Yad nedarim – when the statement is incomplete. The word yad means a hand, but also can mean a handle. In this instance, it means that, although the vow was not fully expressed, enough of it was said to understand the person’s intent. He provided a “handle” with which the verbalization of the vow can be “held.” For example, if someone declared muderani mimcha, “I vow from you,” the person who states this is prohibited to talk to the other person until he has hataras nedarim performed (see Shulchan Aruch, Yoreh Deah 206:1).
  2. Nickname nedarim – when the neder is expressed in a colloquial fashion. The words themselves are not meaningful, but colloquially this is understood to be a neder. The halachic term used in the Mishnah for these nedarim is kinuyim, which means a nickname (Nedarim 2a). An example of this is someone declaring, “This loaf of bread is konam to me,” who is now prohibited to eat the loaf of bread.

The Gemara quotes a dispute between early amora’im why kinuyim are valid. According to one amora, this was an attempt by non-Jews to imitate Hebrew, but because of their native accents, the words ended up sounding very strange. Nevertheless, once these words became accepted to mean what was intended, they will now create an oath or vow. In other words, language in general is what people mean and is conventionally accepted. Every spoken language is constantly in flux, and, as people use the language, dialects and colloquialisms develop. These are all acceptable uses of the language. For our halachic purposes, these peculiar usages for expressions, such as “oath,” “vow” and the like, are considered part of the language – and, therefore, the oath or vow was stated. According to this approach, the word konam was originally a slang word of non-Jews meaning korban.

The other approach of the Gemara explains that the terms called kiyunim by the Mishnah were deliberate creations of Chazal. Chazal realized that since the posuk refers to a korban laShem, the most common way someone will refer to a vow not to use an item will be to say, “this item is a korban for G-d,” meaning that the item may not be used just as a korban may not be used. When doing so, the person may use Hashem’s name as we express it in Hebrew. Although halachically doing this it is not considered taking Hashem’s name in vain, it can easily lead to someone using Hashem’s name inappropriately and violating the Torah prohibition of lo sisa es sheim Hashem Elokecha lashav (Shemos 20:7). In order to avoid and discourage this, Chazal instituted a different nomenclature, specifically for the purpose of oaths and vows, whose purpose is to discourage people from using Hashem’s name without purpose.

According to both approaches that I have presented, the statement, “This loaf of bread is konam to me”means that he has made a vow that the loaf of bread is prohibited for him to eat, just as he is prohibited from eating a korban.

May I appoint an agent to perform hataras nedarim for me?

No, one must ask the beis din directly to release himself from vows (Shulchan Aruch, Yoreh Deah 228:16). If the members of the beis din do not understand the language that the nodeir speaks, they may use an interpreter to facilitate communication (Rema ad loc.).

There is one instance in which someone may make another person an agent to release nedarim. Sometimes, a husband may act as an agent for his wife to annul her nedarim. If a husband finds three people already gathered together – for example, they were performing hataras nedarim for him or for someone else – he may act as his wife’s agent to ask them to release her neder at the same time, if she appointed him to do so (Shulchan Aruch, Yoreh Deah 234:56). However, he may not gather three people together to become a beis din for the purpose of hataras nedarim.

How does a woman perform hataras nedarim?

A woman who has a specific oath, vow, or practice from which she wishes release should arrange to perform hataras nedarim with a talmid chacham or beis din. As mentioned above, if she is married, she may ask her husband to be her agent to perform hataras nedarim, according to the instructions I wrote above (Shulchan Aruch, Yoreh Deah 234:56).

Hataras nedarim on erev Rosh Hashanah

At this point, we can address Yankel’s question:

“When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Indeed, Yankel’s question is valid: hataras nedarim requires mentioning specifically the vow that one desires to release, and the beis din must deliberate whether this particular neder can be revoked. Thus, it is unclear whether the generic hataras nedarim recited on Erev Rosh Hashanah, indeed, releases one from any commitments. The proper thing to do is to mention to an appropriate beis din every specific neder or practice for which one seeks annulment. What, then, is the purpose of hataras nedarim on Erev Rosh Hashanah.

Mesiras moda’ah

The Gemara mentions that a declaration at the beginning of the year that all vows one will make in the course of the year are invalid has some value. This declaration is called a mesiras moda’ah.The Gemara concludes that this statement has only limited value, and one should not intentionally rely upon it. In point of fact, the standard hataras nedarim procedure performed on Erev Rosh Hashanah includes a mesiras moda’ah.

Kol Nidrei

The rishonim dispute whether the purpose of Kol Nidrei that we recite at the beginning of our Yom Kippur service is also meant to be a form of hataras nedarim, performed at a time when virtually everyone is in shul to include the maximum number of people, or whether it is a mesiras modaah. It is for this reason that there are three different versions of the text: one that has Kol Nidrei refer to the past year’s declarations, which means that it is hataras nedarim; one that refers to the coming year’s declarations, which means that it is a mesiras modaah; and one that mentions both the past and the future years, which means that it is meant to accomplish both. From my experience, most congregations today follow the third approach.

There is another interesting difference in halachic practice that results from this last dispute: Should the congregation recite Kol Nidrei together with the chazzan? If it is a mesiras modaah, then one must declare it oneself, and each individual should read the Kol Nidrei together with the chazzan. On the other hand, if it is a form of hataras nedarim, then it should be declared by the chazzan, alone, accompanied by the two honored men alongside him who hold the sifrei Torah, so that they form a beis din that is annulling everyone’s nedarim. The Mishnah Berurah (619: 2) rules that we should consider it a mesiras modaah, and therefore concludes that each individual should recite Kol Nidrei softly along with the chazzan.

Conclusion

Now that we realize how serious our speech can be, we should reflect not only on the ideas of nedarim, but also on all the ramifications of our speech. As the pasuk (Mishlei 18:21) states, Ma’vess ve’chayim be’yad lashon – Life and death are controlled by our tongues!

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